Southern  Branch 
of  the 

University  of  California 

Los  Angeles 

Form  L  1 

LB 


Educ 
Library 


1391 


STATE  NORMAL  SCHOOL, 

Los  Angeles,  Cai. 


A  TREATISE 


I'/ 70 

LAW  OF  PUBLIC  SCHOOLS 


BY    FINLEY    BU.UKE 

COUNSELLOR  AT  LAW 
COUNCIL     BLUFFS,     IOWA 


NEW  YORK 

A.  S.  BARNES  <fe  CO.,  Ill  AND  113  WILLIAM   STREET 

(CORNER  OP  JOHN  STREET) 

1880 


Entered,  according  to  Act  of  Congress,  in  the  year  1880, 

by  FINLEY  BURKE, 
in  the  Office  of  the  Librarian  of  Congress  at  Washington. 


Education 
Library 


PEE  FAG  E 


ALMOST, every  court  in  the  land  has  to  do  with 
questions  growing  out  of  our  public-school  system. 
Our  educational  interests  are  becoming  of  greater 
magnitude  and  importance  each  year. 

Questions  respecting  school  taxation,  contracts, 
employment  of  teachers,  authority  of  teachers, 
rules  and  regulations,  rights  of  pupils,  powers  of 
officers,  liabilities  of  teachers  and  directors,  use  of 
school  property,  etc.,  arise  constantly. 

Normal  schools,  teachers,  and  school  officers — 
who  are  annually  called  upon  to  assume  duties 
^  new  to  them — have  all  felt  the  need  of  a  work 
\X  which  should  embody  in  small  compass  what  may 
t  be  called  the  common  law  of  public  schools,  and 
^  which  would  be  a  companion  book  to  the  statu- 
tory school  laws  as  published  in  the  several  States 
by  State  authority. 

The  statutory  school  law  is  easy  of  access,  but 
the  judicial  decisions  are  scattered  through  a  large 
number  of  reports,  and  are  out  of  the  reach  of 
teachers  and  officers. 


4  PREFACE. 

It  has  been  the  object  of  the  writer  to  make  a 
book  useful  to  the  busy  law  practitioner  and  also 
to  teachers  and  officers. 

An  acquaintance  with  the  law  of  this  subject 
would  tend  in  no  small  degree  to  avert  much 
unseemly  litigation,  which  in  the  infancy  of  our 
public-school  system  was  caused  more  by  the  un- 
settled state  of  the  law  than  by  a  fondness  for 
contention. 

Teachers,  especially,  are  often  called  upon  to  act 
with  vigor  and  promptness  in  matters  requiring 
not  only  tact  and  judgment,  but  also  a  knowl- 
edge of  what  has  actually  been  decided  by  the 
courts  of  law,  and  this  knowledge  is  often  de- 
manded when  there  is  neither  time  nor  oppor- 
tunity to  take  professional  advice. 

The  writer  has  limited  himself  to  the  treatment 
of  what  has  actually  been  decided,  and  what  is 
believed  to  be  the  law. 

If  any  are  disappointed  in  not  finding  men- 
tioned in  these  pages  subjects  and  cases  which 
have  been  ably  discussed  in  teachers'  meetings, 
institutes,  and  conventions,  and  by  State  Super- 
intendents, the  writer  has  only  this  to  say  to 
them,  that  such  discussions,  though  valuable  ami 
interesting,  are  outside  of  the  design  of  this 
book,  and  he  has  purposely  avoided  them  in  order 
to  present  this  as  a  distinct  work  on  the  actual 


PREFACE.  5 

law  of  the  subject,  based  upon  decisions  of  courts 
which  are  precedents  in  those  and  other  legal 
tribunals. 

It  often  becomes  important  to  teachers  and  offi- 
cers  to  know  how  their  interests  would  fare  if  an 
action  should  be  instituted  in  a  court  of  law. 

The  questions  treated  of  are  of  a  general  char- 
acter, and  are  as  likely  to  arise  in  one  State  as 
in  another.  Those  that  are  of  a  purely  local 
character  have  been  avoided  as  far  as  possible. 

J'ULY,   1880. 


CONTENTS. 


CHAPTER  I. 

PAGE 

TAXATION  FOR  PUBLIC  SCHOOLS 9 

1.  BRIEF  HISTORY  OF  THE  SUBJECT 9 

2.  THE  POWER  TO  TAX  FOR  SCHOOL  PURPOSES,   ....       14 


CHAPTER   II. 

EXEMPTION    FROM   TAXATION  OF   PROPERTY  USED  FOR 

EDUCATIONAL  PURPOSES,         .......        23 

1.  RULES  OF  CONSTRUCTION, 23 

2.  WHETHER  PROPERTY  MUST  BE  ACTUALLY  USED  FOR  EDUCA- 

TIONAL PURPOSES, 25 

3.  RESIDENCES  OF  PROFESSORS,  ETC., 27 

4.  PROPERTY  OF  PRIVATE  SCHOOLS  AND  OF  PRIVATE  PERSONS,       29 


CHAPTER  III. 
CONDEMNATION  OF  SITES  FOR  SCHOOL-HOUSES,    ...       S3 


CHAPTER  IV. 

ELECTIONS 34 

1.  TIME  AND  PI-ACE, 35 

2.  CONDUCT  OF  THE  ELECTION,  AND  IRREGULARITIES  THEREIN,  36 

3.  SUFFICIENCY  OF  THE  ELECTION, 37 

4.  IMPERFECT  BALLOTS 38 

CHAPTER  V. 

SCHOOL  OFFICERS 41 

1.  UNITED  STATES  COMMISSIONER  OF  EDUCATION,      ...  41 

2.  STATE  SUPERINTENDENT  OF  PUBLIC  INSTRUCTION,         .       .  43 

3.  COUNTY  SUPERINTENDENT, 44 


Mil  CONTENTS. 

SCHOOL  OFFICERS-Continned.  PAGE 

4.  DIRECTOHS,  Ti:r-TKK-.  ETC., 17 

A.  Their  Power*  and  Dutltt, \- 

B.  Their  Contract*,  .                       r>I 

C.  Their  lAaWity  far  Negligence 

5.  TREASURER, 

6.  VACANCIES  BY  OPERATION  or  LAW, 66 

CHAPTER   VI. 

USE  OF  SCHOOL  PROPERTY 58 

CHAPTER  VII. 

SCHOOL  DISTRICT  MEETINGS, 68 

CHAPTER  VIII. 

EMPLOYMENT  OF  SCHOOL  TEACHERS 66 

1.  PARTIES  TO  THE  CONTRACT 66 

2.  A  CERTIFICATE  PREREQUISITE, 70 

8.    CHARACTER  OF  TUB  CONTRACT, 71 

4.  CONDITIONS  OF  TUB  CONTRACT, 75 

5.  BREACH  OF  THE  CONTRACT. 81 

6.  REMEDIES, gg 

7.  DEFENCES, 85 

CHAPTER  IX. 

SCHOOL  REGULATIONS, 89 

1.  BY  WHOM  MADE, 89 

2.  BY  WHOM  ENFORCED 90 

UKI. ii. ATKINS  AS  TO  ADMISSION, 91 

4.    I{i:<a:i.ATK>NM  A*  TO  ATTENDANCE, 94 

.1.       ItKliri.ATIONH    AS    TO   THE    1'sK   OF  TUB   BlBI.K,    ETC.,           .           .  102 

6.  KKIiCI.ATIONM   AS  TO   >TI   nil  - Ill 

7.  REOt'I.ATIONH   AH   TO  CONDUCT,    ETC., Ill 

8.  (iENEKAL   I'KINC  Il'I.E, 115 

CHAPTER   X. 

CORPORAL  PUNISHMENT, ...  119 


LAW  OF  PUBLIC  SCHOOLS. 


CHAPTER  I. 
TAXATION  FOR  PUBLIC  SCHOOLS. 

1.  BRIEF  HISTORY  OF  THE  SUBJECT. — 2.  THE  POWER 
TO  TAX  FOR  SCHOOL  PURPOSES. 


1.  BRIEF  HISTORY  OF  THE  SUBJECT. 

THE  thought  that  man  as  man,  without  ref- 
erence to  any  special  practical  end,  should  be  ed- 
ucated seems  to  have  occurred  first  to  the  Greeks, 
but  it  was  not  until  the  Reformation  that  men 
began  to  hold  the  opinion  that  every  man's  in- 
tellect should  be  so  trained  as  to  be  able  to  read 
and  inquire  and  think  for  itself. 

During  what  are  called  the  dark  centuries  a 
state  of  deplorable  ignorance  prevailed  all  over 
Europe.  It  is  refreshing  to  find  in  the  history 
of  this  dark  middle  age  two  monarchs  who  strove 
to  give  to  their  subjects  the  inestimable  privilege  of 


10  LAW   OF   PUBLIC   SCHOOLS. 

lifting  themselves  out  of  the  depths  of  ignorance 
in  which  they  were  immersed.  At  the  accession 
of  Charlemagne  to  the  throne  of  France  no  means 
of  education  existed  in  his  dominions.  This  mon- 
arch, who,  it  is  said,  was  himself  incapable  of 
writing,  invited  men  of  letters  from  abroad  to 
come  and  reside  at  his  court  and  instruct  him- 
self and  his  family.  He  also  established  schools 
in  various  cities  of  his  empire.1 

In  the  ninth  century  Alfred  the  Great,  of  Eng- 
land, made  similar  efforts,  but  they  died  with  him, 
his  successors  being  too  much  occupied  with  warfare 
to  continue  the  educational  work  thus  initiated. - 

Down  to  the  time  of  the  transitional  movement 
in  Europe  from  the  mediaeval  ages  to  the  modern 
world,  there  is  little  of  interest  to  the  cause  of 
popular  education  to  record. 

The  influence  of  the  Reformation  upon  educa- 
tion was  made  manifest  early  in  the  seventeenth 
century.  In  1616  the  Scotch  Parliament,  adopts! 
measures  for  settling  and  supporting  a  public 
school  in  each  parish  at  (he  expense  of  the  her- 
itors or  landed  proprietors.  This  legislation  wa-; 
repealed  at  the  restoration  of  Charles  II.,  but  was 
re-enacted  by  the  Scottish  Parliament  in  1696.3 

I  Hallam's  "  Middle  ALT< •<."  (Imp   ix  ,  parts  1  and  2. 

II  Hume's  "  Hislnry  of  Knglaud,"  vol.  i.  chap.  ii. 
»  II.  Kent's  Cumm  , 


STATE  NORMAL  SCHOOL, 

Los  Angeles,  Cat. 
TAXATION  FOR   PUBLIC  SCHOOLS.  11 

Lord  Macaulay  says  :  "  By  this  memorable  law  it 
was,  in  the  Scotch  phrase,  statuted  and  oraained 
that  every  parish  in  the  realm  should  provide  a 
commodious  school-house  and  should  pay  a  mod- 
erate stipend  to  a  schoolmaster.  The  effect  could 
not  be  immediately  felt.  But,  before  one  genera- 
tion had  passed  away,  it  began  to  be  evident  that 
the  common  people  of  Scotland  were  superior  in 
intelligence  to  the  common  people  of  any  other 
country  in  Europe.  To  whatever  land  the  Scotch- 
man might  wander,  to  whatever  calling  he  might 
betake  himself,  in  America  or  in  India,  in  trade 
or  in  war,  the  advantage  which  he  derived  from 
his  early  training  raised  him  above  his  competitors. 
If  he  was  taken  into  a  warehouse  as  a  porter,  he 
soon  became  foreman.  If  he  enlisted  in  the  army 
he  soon  became  a  sergeant.  Scotland,  meanwhile, 
in  spite  of  the  barrenness  of  her  soil  and  the  se- 
verity of  her  climate,  made  such  progress  in  agri- 
culture, in  manufactures,  in  commerce,  in  letters, 
in  science,  in  all  that  constitutes  civilization,  as 
the  Old  World  has  never  seen  equalled,  and  as  even 
the  .New  World  has  scarcely  seen  surpassed. 

This  wonderful  change  is  to  be  attributed,  not 
indeed  solely,  but  principally,  to  the  national  sys- 
tem of  education."  ' 

1  Macaulay 's  "  History  of  England,"  vol.  v.  chap.  xxii. 


12  LAW   OF   PUBLIC   SCHOOLS. 

Since  then  every  great  power  of  the  civilized 
world  has  adopted  some  system  of  public  schools. ' 

What  little  objection  has  been  made  to  taxation 
for  universal  education,  in  this  country,  has  come 
from  Wealth,  which  says  it  cannot  properly  be 
taxed  for  the  education  of  the  people.  We  must 
not  forget  that  without  law  the  ownership  of  that 
wealth  could  not  exist 

Jeremy  Bentham  says  :  "  The  idea  of  property 
consists  in  an  established  expectation,  in  the  per- 
suasion of  being  able  to  draw  such  or  such  an 
advantage  from  the  thing  possessed,  according  to 
the  nature  of  the  case.  Now  this  expectation, 
this  persuasion  can  only  be  the  work  of  the  law. 
I  cannot  count  upon  the  enjoyment  of  that  which 
I  regard  as  mine,  except  through  the  promise  of 
the  law  which  guarantees  it  to  me.  Property  and 
l;i\v  are  born  together,  and  die  together.  Before 
laws  were  made  there  was  no  property  ;  take 
away  laws  and  property  ceases."9 

The  words,  "  I  cannot  count  upon  the  enjoy- 
ment of  that  which  I  regard  as  mine,  except 
through  the  promise  of  the  law  which  guarantees  it 

1  In  Turkey,  whose  influence  as  a  nation  is  declining,  public 
instruction  has  ceased.  Her  school-houses  have  ln-cn  al>;m- 
doned  and  are  in  ruins.  Rupt.  of  U.  8.  Com.  of  Education, 
1876-7,  p.  193 

*  "  Principles  of  the  Civil  Code,  "chap.  viii.  "  Of  Property." 


TAXATION  FOR   PUBLIC   SCHOOLS.  13 

to  me,"  come  home  with  significant  meaning  in  this 
day  of  Socialism  and  of  clashing  between  Capital 
and  Labor,  which  now  so  often  occurs  in  the  mon- 
archies of  the  Old  World,  and  even  in  our  own 
land.  The  law  guarantees  the  right  of  property, 
but  instantaneous  with  the  creation  of  the  right 
of  property  must  exist  the  paramount  claim  of 
the  government  to  such  portion  of  it  as  may  be 
necessary  fully  to  effectuate  that  guaranty.  The 
law  must  be  upheld  and  respected,  or  else  all 
rights  of  ownership  are  in  jeopardy  and  industry 
paralyzed. 

To  maintain  the  law,  education  of  the  people 
is  more  potent  than  standing  armies. 

Lord  Brougham,  in  the  House  of  Commons, 
said  :  "  There  have  been  periods  when  the  coun- 
try heard  with  dismay  that  the  soldier  was  abroad. 
That  is  not  the  case  now.  Let  the  soldier  be 
abroad :  in  the  present  age  he  can  do  nothing. 
There  is  another  person  abroad — a  less  important 
person  in  the  eyes  of  some,  an  insignificant  per- 
son, whose  labors  have  tended  to  produce  this 
state  of  things.  The  schoolmaster  is  abroad  ! 
And  I  trust  more  to  him,  armed  with  his  primer, 
than  I  do  the  soldier  in  full  military  array,  for 
upholding  and  extending  the  liberties  of  his 
country."1 

1  Speech,  January  29,  1828. 


14:  LAW    OF    PUBLIC    RCHOOTA 

"If  is  intelligence,"  said  Daniel  Webster, 
"  whioh.  has  reared  the  majestic  columns  of  our 
natioi.al  glory,  and  this  alone  can  prevent  them 
from  crumbling  into  ashes." 

Staie  education,  being  so  important  to  national 
existence,  is  therefore  a  very  appropriate  object  of 
taxation. 

2.  POWER  TO  TAX  FOR  SCHOOL  PURPOSES. 

The  State  is  the  source  of  authority.  "  Every 
municipal  corporation  and  every  political  division 
of  the  State  must  be  able  to  show  due  authority 
from  the  State  to  make  the  demand."1 

The  taxing  power  can  be  lawfully  exercised  only 
in  behalf  of  a  public  purpose. 

Boards  of  school  directors  are  civil  corporations, 
and  the  Legislature  may  confer  upon  them  the 
power  to  tax  for  school  purposes.2 

The  words  "  public  schools"  are  synonymous 
with  "common  schools,"  and  mean  the  schools 
created  by  law  and  maintained  at  the  public  ex- 
pense, and  which  are  open  and  common  to  the 
children  of  all  the  inhabitants  alike.' 

Taxation   for   public   schools   id   for  a  public  use 

1   "  C'onlcy  on  Taxation,"  p.  474. 

*  Stele  t>.  HrriiK.inl.  :;s  Texas,  llfi. 

*  Jeiikius  v.  Amlovc:-,  !'):j  Mass.,  94-08;  Poeplf  r.  J'.oard  of 


TAXATION    FOR   PUBLIC   SCHOOLS.  15 

and  purpose,  and  public  education  is  a  fit  and  ap- 
propriate object  of  taxation. ' 

Such  taxes  may  be  constitutionally  imposed,  and 
one  receiving  his  full  share  of  benefits  from  the 
school  system  cannot  complain  that  the  legislative 
power  is  in  that  respect  unwarranted.2 

There  can  be  no  taxation  in  aid  of  a  private  edu- 
cational institution  operated  for  individual  profit. 3 

That  a  school  building  -was  larger  than  was 
immediately  needed,  and  that  the  vote  specified 
among  other  uses  of  a  part  of  the  building  that  of 
holding  school  society  meetings  and  lectures  there- 
in, does  not  vitiate  the  tax,  nor  authorize  a  court 
to  enjoin  the  same.  4 

A  vote  by  a  school  district  to  raise  a  given  sum 
to  remove  and  repair  a  school-house  is  within  the 


Education,  13  Barb.  (N.  Y.),  400  ;  Webster's  Dictionary,  Com- 
mon— common  scltools,  and  Abbott's  Law  Dictionary,  title 
"  Common  Schools." 

1  Opinion  of  the  Judges,  68  Mi.-.,  582  ;  Williams  v.  School 
District,  33  Vt.,  271. 

s  Marshall  v.  Donovan,  10  Bush.  (Ky.),  G81  ;  6  Cowen 
(N.  Y.),  543  ;  56  Pa.  St.,  359  ;  22  Grattau  (Va.),  857. 

3  Curtis'  Adm'r's  v.  Whipple,  24  Wise.,  350  ;  Philadelphia 
Association,  etc.,  v.  Wood,  39  Pa.  St.,  73. 

4  Sheldon  v.  Centre  School  District,  25  Conn.,  224  ;  Green- 
bauks  v.  Bout  well,  43  Vt.,  207. 


16  LAW   OF   PUBLIC   SCHOOLS. 

authority  granted  by  statute  to  raise  money  "  for 
erecting  and  repairing  school-houses."1 

Where  the  law  provides,  as  it  does  in  some 
of  the  States,  that  the  electors  of  a  school  dis- 
trict, at  an  annual  meeting,  must  vote  a  precise 
and  definite  sum  as  a  tax  on  the  inhabitants  of 
the  district  for  building  a  school-house,  they  can- 
not delegate  to  the  officers  of  the  district  any 
discretion  as  to  the  aggregate  amount  of  tax  to 
be  raised.  s 

In  Michigan  the  policy  of  the  law  of  that 
State  upon  the  subject  of  education,  from  its  or- 
pin ization  until  after  the  adoption  of  the  present 
constitution,  was  reviewed  by  the  Supreme  Court 
of  that  State,  and  the  court  came  to  the  conclu- 
sion that  there  is  nothing  in  the  constitution  or 
laws  of  that  State  restricting  its  school  districts 
in  the  branches  of  knowledge  which  their  officers 
may  cause  to  be  taught,  or  the  grade  of  instruc- 
tion that  may  be  given,  if  the  voters  of  the  dis- 
trict consent  to  bear  the  expense,  nor  is  there 
anything  to  prevent  instruction  in  the  classics  and 
modern  languages  in  these  schools.  * 

In  the  same  case,  the  question   of  whether  there 

1  Bump  r.  Smith,  11  X.  II.,  48. 

*  Robinson  t.  Dodge,  18  Johnson,  351  ;  Trumbull  ».  White, 

r,  Hill,  x;. 

;;irt  r.  School  District,  etc.,  :;o  Midi.,  <•!». 


TAXATION   FOR   PUBLIC   SCHOOLS.  17 

exists  any  authority  to  make  high  schools  free  by 
taxation,  levied  on  the  people  at  large,  was  fairly 
and  fully  raised,  and  the  argument  urged  that, 
while  there  may  be  no  constitutional  provision  ex- 
pressly prohibiting  such  taxation,  the  general  course 
of  legislation  in  the  State  and  the  general  un- 
derstanding of  the  people  have  been  such  as  to 
require  the  courts  to  regard  instruction  in  the 
classics  and  in  living  modern  languages,  in  these 
"high  schools,"  as  in  the  nature,  not  of  prac- 
tical and  therefore  necessary  instruction  for  the 
people  at  large,  but  rather  as  accomplishments 
for  the  few,  to  be  sought  after  in  the  main  by 
those  most  able  to  pay  for  them,  and  to  be  paid 
for  by  those  who  seek  them,  and  not  by  general 
tax,  and  that  therefore  the  courts  ought  to  de- 
clare such  taxation  incompetent.  After  hearing 
full  argument,  the  court  decided  that  such  taxation 
was  proper  and  lawful.  l  In  considering  the  appli- 
cability of  the  decision  above  referred  to,  it  must 
be  borne  in  mind  that  there  is  nothing  in  the 
State  Constitution,  or  in  the  history  of  education 
in  Michigan,  different,  so  far  as  the  principle 
therein  settled  is  regarded,  from  the  constitutional 
provisions  and  educational  histories  of  many  of  the 
other  States  of  the  Union. a 

1  Stuart  v.  School  District,  etc.,  30  Mich.,  69. 

2  A  very  convenient  compilation  of   the  history  of  public 


18  LAW   OF  PUBLIC  SCHOOLS. 

There  are  many  other  decisions  in  which  the 
power  to  vote  and  grant  money  by  taxation  for 
the  support  of  grammar  schools,  high  schools,  and 
normal  schools,  has  been  liberally  construed  by 
the  courts  in  aid  of  such  institutions. '  Indeed  it 
seems  practically  to  have  been  adopted  as  a  rule 
by  the  courts  that  the  law  shall  be  liberally  con- 
strued in  aid  of  such  objects. 

In  an  early  Massachusetts  case  it  was  decided 
that  money  raised  for  the  support  of  a  female  higli 
school,  for  the  purpose  of  teaching  bookkeeping, 
algebra,  geometry,  history,  rhetoric,  mental,  moral, 
and  natural  philosophy,  botany,  the  Latin  and 
Frenc.i  languages,  and  other  higher  branches,  was 
lawfully  raised  by  taxation.* 

As  early  as  1636  provision  was  made  in  Massa- 
chusetts for  a  public  school,  which  two  years  later, 

• 

education  in  the  various  States  is  contained  in  the  Report  of  the 
U.  8.  Commissioner  of  Education  for  1876-7. 

1  Richards*.  Raymond,  Sup.  Court  of  111.,  Nov.  10.  1870, 
Chicago  Legal  News,  vol.  xii.,  No.  11,  Whole  No.  580  ;  Merrick 
and  others,  >\  Inhabitants  of  Amherst  and  others,  12  Allen,  500  ; 
Cushing  ».  Inhabitants  of  Newburyport,  10  Motoalf  (Mass.), 
508  ;  Briggs  et  al.  t.  Johnson  County,  Mo.,  4  Dillon  C.  ('.  II., 
148;  Commonwealth  v.  Dedham,  16  Mass.,  141;  Common 
•wealth  ».  Sheffield,  11  Cush.  (Mass.),  178  ;  and  see  Jenkins  v. 
Andover,  103  Mass.,  94. 

1  Gushing  v.  Inhabitants  of  Newburyport,  10  Metcalf  (Mass.), 
EKJ6, 


TAXATION   FOR   PUBLIC   SCHOOLS.  10 

receiving  a  bequest  from  John  Harvard,  was  called 
HARVARD  COLLEGE.' 

"  To  the  end  that  learning  may  not  be  buried 
in  the  graves  of  our  forefathers,"  in  1647  it  was 
ordered  in  all  the  Puritan  colonies  "  that  every 
township,  after  the  Lord  hath  increased  them  to 
the  number  of  fifty  householders,  shall  appoint  one 
to  teach  all  children  to  read  and  write ;  and 
where  any  town  shall  increase  to  the  number  of 
one  hundred  families,  they  shall  set  up  a  gram- 
mar school ;  the  masters  thereof  being  able  to  in- 
struct the  youth  so  far  as  they  may  be  fitted  for 
the  university."* 

The  great  historian  of  the  United  States  says  : 
"  In  these  measures,  especially  in  the  laws  estab- 
lishing common  schools,  lies  the  secret  of  the 
success  and  character  of  New  England.  Every 
child,  as  it  was  born  into  the  world,  was  lifted 
from  the  earth  by  the  genius  of  the  country,  and 
in  the  statutes  of  the  land  received  as  its  birth- 
right, a  pledge  of  the  public  care  for  its  morals 
and  its  mind." 

In  1817  the  town  of  Dedham  was  indicted  for 
failure  to  maintain  a  public  high  school. 3 

1  Bancroft's  "  History  of  the  United  States,"  vol.  i.  chap.  x. 
»  Id. 

3  Commonwealth  v.  Dedham,  16 Mass.,  141.  See  also  Com. 
v.  Sheffield,  11  Gushing  (Mass.),  178. 


20  LAW   OF   PUBLIC   SCHOOLS. 

Higli  schools  thus  originated  almost  with  the 
settling  of  the  colonies,  and  are  now  maintained 
in  the  various  States  and  Territories,  and  no  ques- 
tion has  been  made  as  to  the  power  to  tax  for 
their  support,  except  in  the  cases  previously  cited, 
in  which  that  power  was  upheld. 

It  may  be  said  that  in  the  case  of  Kuleson  r. 
Post,  the  Supreme  Court  of  Illinois  held  the  con- 
trary so  far  as  that  State  is  concerned,  but  an 
examination  of  that  case  will  disclose  that  the 
writer  of  the  opinion  was  not  called  upon  to 
decide  the  question,  and  it  cannot  be  considered 
as  more  than  the  private  view  of  the  writer  of 
the  opinion.1  It  should  be  said,  to  the  credit  of 
that  State,  that  it  is  one  of  the  foremost  in  sec- 
ondary education,  and  its  many  high  schools  are 
cheerfully  supported  by  taxation. 

A  power  that  is  thus  coeval  with  our  govern- 
ment, which  originated  with  it,  and  has  been  con- 
stantly exercised  ever  since,  cannot  now  be  doubted. 

Most  undoubtedly,  the  legislature  of  a  State  has 
power  to  tax  for  the  support  of  public  high  schools, 
and  this  power  may  be  delegated  to  school  districts 
as  civil  corporations. 

In  the  course  of  an  opinion  recently  delivered  in 
the  Federal  Circuit  Court  for  the  Eighth  Circuit,  it 

1  Ruleson  t>.  Post,  79  Illinois,  fiii7. 


TAXATION   FOR   PUBLIC   SCHOOLS.  21 

was  said  by  the  court  :  "  It  has  long  been  a  recog- 
nized fact  that  the  order  and  well-being  of  any 
community  largely  depended  upon  its  moral 
and  intellectual  culture ;  and  nearly  all  nations 
making  any  pretensions  to  civilization  have  in 
some  way  or  other  recognized  this.  The  encour- 
agement usually  was  in  keeping  with  the  prevail- 
ing form  of  government  and  social  organization. 
As  these  became  modified,  so  as  to  distribute  bur- 
dens and  benefits  more  equally,  educational  interest 
came  in  for  a  share  of  its  favors.  Not,  however, 
until  intelligence  had  demonstrated  its  physical 
power,  beyond  cavil  and  dispute,  did  education 
obtain  the  universal  recognition  it  deserves. 

Organizing  armies  and  schools,  improving  im- 
plements of  war  and  the  school-master,  became 
equally  of  national  concern. 

At  the  birth  of  our  government  education  had 
not  obtained  national  recognition ;  for  beyond  '  the 
promotion  of  science  and  arts  by  securing  for 
limited  times  to  authors  and  inventors  the  ex- 
clusive right  to  their  respective  writings  and  dis- 
coveries,' no  attempt  is  made  in  the  Constitution 
of  the  United  States  to  draw  education  within 
national  cognizance — thus  indirectly  delegating  •  it 
to  the  States. 

In  them  it  found  more  or  less  favor,  until  to- 


22  LAW   OF   PUBLIC   SCHOOLS. 

day    there    is    not    a  State   in    the    Union    which 
fails  to  recognize  its  importance."1 

In  the  same  case  it  was  held  that  the  fact  that 
free  schools  and  a  State  university  are  expressly 
mentioned  in  a  State  constitution,  and  normal 
schools  are  not,  does  not  amount  to  a  constitu- 
tional prohibition  against  the  establishment  of  the 
latter.8 

1  Briggs  et  al.  t.  Johnson  County,  etc.,  4  Dill,  C.C.R.,  143. 

»  Id. 


STATE  NORMAL  SCHOOL, 

Los  Angeles,  CaL 
EXEMPTION   FROM  TAXATION.  23 


CHAPTER  II. 

EXEMPTION    FROM   TAXATION    OF    PROP- 
ERTY USED  FOR  EDUCATIONAL 
PURPOSES. 

1.  RULES  OF  CONSTRUCTION. — 2.  WHETHER  PROP- 
ERTY MUST   BE    ACTUALLY  USED  FOR  EDUCATIONAL 

PURPOSES. — 3.  RESIDENCES  OF  PROFESSORS,  ETC. — 
4.  PROPERTY  OF  PRIVATE  SCHOOLS  AND  OF  PRI- 
VATE PERSONS. 


1.  RULES  OF  CONSTRUCTION. 

THE  property  belonging  to  the  State  or  other 
civil  divisions,  employed  for  the  purpose  of  public 
education,  is,  like  all  other  public  property,  exempt 
from  taxation.  And  property  devoted  to  educa- 
tional purposes,  generally,  is  expressly  exempted 
from  taxation  by  legislative  enactment  in  the  vari- 
ous States. 

The  statutes  of  some  of  the  States  are,  however, 
much  more  liberal  than  those  of  others,  and  ques- 
tions frequently  arise  as  to  the  extent  of  the  ex- 
emption and  the  construction  to  be  given  thereto. 

It  is  said  that  ' '  taxation  is  the  rule  and  exemp- 


24  LAW   OF   PUBLIC   SCHOOLS. 

tion  the  exception,  and  that  statutes  providing  for 
exemption  should  be  strictly  construed,  so  that  no 
property  shall  be  exempt  excepting  that  which  is 
clearly  and  fairly  within  the  express  terms  of  the 
law."1 

The  right  of  exemption  cannot  be  implied,  but 
must  be  given  in  language  which  will  not  admit 
of  doubt. 

Exemptions  are  so  repugnant  to  the  law  that 
they  will  be  construed  with  strictness.1 

Statutory  exemptions   will  be   construed  as  a  di- 

1  Per  Rothrock,  J.,  in  Trustees  of  Griswold  Coll.  r.  The 
State  of  Iowa,  46  Iowa,  275-278. 

8  Trustees  of  Griswold  Coll.  t>.  The  State  of  Iowa,  46  Iowa, 
278  ;  Wash.  University  v.  Rouse,  42  Mo.,  308  ;  Hannibal,  etc., 
«.  Shacklctt,  30  Mo.,  550  ;  Wyrnan  *>.  St.  Louis,  17  Mo.,  335  ; 
Pacific  R.R.  Co.  v.  Cass.  County,  53  Mo.,  17  ;  Indianapolis  v. 
McLean,  8  Ind.,  328  ;  Methodist  Church  v.  Ellis,  38  Ind..  3  ; 
Hartt).  Plum,  14  Cal.,  351  ;  Kendrick  t.  Farquhar,  8  Ohio, 
189  ;  Armstrong  «.  Treasurer  of  Athens  County,  10  Ohio,  23*  ; 
Cincinnati  Coll.  ®.  The  State,  19  Ohio,  110;  Probasco «. 
Moundville,  11  W.  Va.,  501  ;  Crawford  «.  Burrel,  53  Pa.  St., 
219,  220  ;  Platt  t>.  Rice,  10  Watts,  352  ;  Armand  v.  Dumas,  28 
La.  Ann.,  403  ;  State  v.  Ross,  24  N.  J.  L.  (4  Zabr).  497  ;  State 
v.  Parker,  32  N.  J.,  426  ;  Chegaray  v.  Mayor,  etc.,  13  N.  Y.  (3 
Kern.),  220  ;  Chegaray  v.  Jenkins,  3  Sandf.,  409;  People  «. 
Roper,  35  N.  Y.,  629  ;  Seymours.  Hartford,  21  Conn.,  481  ; 
State  v.  Wilson,  Peningt.,  300;  Bank  of  Republic  «.  Hamil- 
ton, 21  111.,  53  ;  Vail  v.  Beach,  10  Kan.,  214  ;  St.  Mary's  Coll. 
e.  Crowl,  10  Kan.,  442  ;  Miami  ».  Brackeuridge,  12  Kan.,  114. 


EXEMPTION   FROM   TAXATION.  25 

rection   not   to   assess,    rather  than    as   a    contract 
creating  vested  rights.1 

When  an  exemption  is  prescribed  as  part  of 
a  charter  granted  by  the  State  to  a  corporation, 
such  "exemption  becomes  part  of  the  contract,  and 
is  protected  by  the  Constitution  of  the  United 
States.2  This  is  well  settled. 

2.  WHETHER  PROPERTY  MUST   BE    ACTUALLY  USED 
FOR  EDUCATIONAL  PURPOSES. 

Whether,  in  order  to  be  exempt,  the  property 
must  be  actually  used  for  educational  purposes,  de- 
pends upon  the  wording  of  the  particular  statute 
creating  the  exemption,  but  the  judicial  construc- 
tions which  have  been  put  upon  such  statutes  as 
have  been  called  in  question  are  valuable  aids  in 
discovering  the  meaning  of  analogous  laws. 

In  order  to  be  exempt  from  taxation  it  is  gen- 
erally necessary  that  the  property  be  actually  used 
for  educational  purposes. 3 

1  Probasco  v.  Moundville,  11  W..  Ya.,  501. 

4  The  Delaware,  18  Wall.,  225  ;  "  Black  well  on  Tax  Titles," 
*407  ;  "  Cooley  on  Taxation,"  p.  55  ;  Cooley's  "  Constitutional 
Limitations,"  pp.  280,127. 

3  Washburn  v.  Commissioners,  8  Kan.,  344;  Cincinnati 
Coll.  v.  State,  19  Ohio,  110  ;  State  v.  Elizabeth,  4  Dutch.,  103  ; 
Detroit,  etc.,  t>,  Mayor,  3  Mich.,  172  ;  State  v.  Ross,  4  Zabr., 
497  ;  Pace  v.  Jefferson  County,  20  111. ,  644 ;  Nazareth  v.  Com- 
ui'.mwoalth,  14  B.  Moil.  266. 


26  LAW   OF   PUBLIC  SCHOOLS. 

But  it  was  decided  by  the  Supreme  Court  of  the 
United  States  that  an  exemption  of  all  property 
"  necessary  for  school  purposes"  includes  property 
not  in  actual  use  by  the  school,  but  which  is  rented 
and  the  income  applied  to  the  support  of  the 
school.1 

And  under  a  statute  of  Massachusetts  exempting 
from  taxation  ' '  the  personal  property  of  literary 
and  scientific  institutions  incorporated  within  the 
Commonwealth,  and  the  real  estate  belonging  to 
such  institutions  occupied  by  them  or  their  offi- 
cers for  the  purposes  for  which  they  were  incor- 
porated," it  was  held  that  a  farm  used  for  pasture 
and  tillage  grounds,  the  products  of  which  were 
used  for  the  support  of  a  boarding-house  for  stu- 
dents attending  an  academy,  was  exempt.1 

A  certain  building  was  at  first  intended  for  a 
dwelling-house,  but  the  plan  was  altered  soon  after 
the  foundation  was  laid,  and  the  owner,  under  an 
agreement  with  another,  finished  it  for  use  as  a 
seminary,  and  it  was  so  used,  under  a  statute  ex- 
empting every  building  erected  for  the  rise  of  a 
college,  etc.;  it  was  held  that  this  building  was 
exempt.' 

1  The  Northwestern  University  r.  The  People,  Sup.  Court 
of  U.  B.,  reported  iu  Am.  L.  Reg.,  vol.  xviii.,  No.  0,  p.  360. 
s  "Wesleyan  Academy  v.  VVilbraham,  99  Mass.,  599. 
1  Cbegaray  v.  Mayor,  etc.,  2  Duer  (N.Y.),  521. 


EXEMPTION  FROM  TAXATION.  27 

3.  RESIDENCES  OF  PKOFESSORS,  ETC. 

It  has  sometimes  been  made  a  question  whether 
the  residences  of  college  officers  and  professors  are 
included  in  an  exemption  of  property  devoted  to 
educational  purposes. 

In  New  Jersey  it  is  held  that  the  exemption 
clause  in  the  Tax  Act  of  that  State  of  1851,  exempt- 
ing "all  colleges,  academies,  or  seminaries  of  learn- 
ing," extends  to  the  houses  and  lots  provided  by 
the  College  of  New  Jersey  for  the  residences  of  its 
president,  professors,  and  steward,  such  residences 
being  in  part  pay  for  their  official  services.1 

Under  the  Iowa  statute  exempting  from  taxation 
"  all  public  libraries,  grounds,  and  buildings  of  lit- 
erary, scientific,  benevolent,  agricultural,  and  relig- 
ious institutions  and  societies  devoted  solely  to 
the  appropriate  objects  of  these  institutions,  not 
exceeding  six  hundred  and  forty  acres,  and  not 
leased  or  otherwise  used  with  a  view  to  pecuniary 
profit,'*  *  it  was  held  that  all  property,  including  the 
residences  of  professors  upon  the  grounds  of  litera- 
ry institutions  and  the  dwellings  of  clergymen 
owned  by  religious  societies  and  used  exclusively 
for  such  dwellings,  without  pecuniary  profit  to  the 
owners,  is  exempt  from  taxation,  provided  such 

1  State  v.  Ross,  24  K  J.  L.  (4  Zabr.),  497. 
*  Code  of  1873,  Sec.  797. 


28  LAW  OF  PUBLIC   SCHOOLS. 

property  is  proper  and  appropriate  to  effectuate  the 
objects  of  such  institutions.1 

The  president  and  fellows  of  Harvard  College 
built  a  dwelling-house  on  land  of  the  corporation 
within  the  college  yard,  and  leased  the  same  to 
one  of  their  professors,  to  be  occupied  by  him  as 
a  residence  for  himself  and  family  at  an  annual 
rent.  Held,  that  this  was  not  an  occupation  of 
the  real  estate  of  the  college  by  one  of  its  offi- 
cers, within  the  exemption  from  taxation  provided 
by  Massachusetts  Revised  Statutes,  Ch.  7,  §  5,  cl.  2  ; 
but  it  was  expressly  stated  that  this  would  be 
otherwise  if  the  building  had  been  built  for  one  of 
the  professors  or  officers  of  the  college,  and  had 
been  occupied  by  him,  with  the  permission  of  the 
college,  and  without  having  any  estate  therein,  or 
paying  any  rent  therefor.* 

But  in  Ohio  it  was  said  the  mere  occupancy  of 
a  house  by  a  college  professor  is  not  an  occupation 
for  literary  purposes,  within  the  meaning  of  cer- 
tain acts  of  1831  and  1834,  although  it  is  situated 
on  land  of  the  college.  Under  said  acts  the  build- 
ing must  be  occupied  for  literary  purposes.1 

1  Trustees  of  Griswold  College  v.  The  State  of  Iowa,  46 
Iowa,  275. 

*  Pierce  v.  Cambridge,  2  Cushing  (Mass.),  611. 

1  Kendrick  t>.  Farquhar,  8  Ohio,  189.  And  see  Vail  v. 
Beach.  10  Kan.,  214  ;  St.  Peter's  Church  c.  Board  of  Corn's, 
VJ  Minn..  395. 


EXEMPTION  FROM  TAXATION.  29 

4.  PROPERTY  OF  PRIVATE  SCHOOLS  AND  OF  PRI- 
VATE PERSONS. 

These  exemptions  are  not  generally  intended  to 
include  private  schools  operated  for  individual 
profit,  nor  property  used  for  the  support  of  such 
private  institutions.1 

A  building  used  in  part  for  school  purposes  and 
in  part  for  other  purposes  is  not  exempt,  because 
there  can  be  no  separate  assessment  for  the  part 
not  used  for  school  purposes.* 

A  private  boarding-school  is  not  such  a  "  school  " 
or  "  seminary  of  learning  "as  is  exempt  from  tax- 
ation by  1  New  York  Revised  Statutes,  388,  §  4.* 

A  building  owned  by  the  College  of  New  Jersey, 
but  used  as  a  grammar  school,  at  an  annual  rent, 
'and  which  prepares  students  for  the  college,  is  not 
such  a  part  of  the  college  as  to  be  exempt  from 
taxation.4 

A  grammar  school  kept  by  a  person  at  his  own 
risk,  on  his  own  account,  is  not  exempt  under  the 
New  Jersey  Tax  Act  of  1851.  * 

1  State  v.  Ross,  4  Zabr.,  497  ;    Indianapolis  v.  McLean,  8 
Ind.,  328  ;  Pace  v.  Jefferson  County,  20  111.,  644  ;  Chegaray 
v.  Mayor,  13  N.Y.  (3   Kern.),  220  ;  Chegaray  v.    Jenkins,   3 
Saudf.,  409. 

2  Wyman  v.  St.  Louis,  17  Mo.,  335. 

3  Chegaray  v.  Mayor,  etc.,  13  N.  Y.  (3  Kern.),  220  ;  Che- 
garay  v.  Jenkins,  3  Sandf.,  409. 

4  State  v.  Ross,  24  N.  J.  L.  (4  Zabr.),  497.  B  Id. 


30  LAW   OP   PUBLIC  SCHOOLS. 

And  in  Illinois  it  has  been  decided  that  to  con- 
stitute a  school-house  a  "public  school-house,"  and 
to  exempt  it  as  such  from  taxation,  it  must  bo 
property  under  the  immediate  control  of  the  school 
district. ' 

But  in  Indiana,  under  an  act  of  18G1,  it  was 
held  that  buildings  erected,  kept,  and  appropriated 
for  the  use  of  a  literary  and  scientific  institution,  and 
in  which  a  corps  of  teachers  has  been  engaged  in 
instructing  pupils  in  ancient  and  modern  languages, 
in  the  various  sciences,  and  in  all  branches  usually 
taught  in  colleges,  are  exempt,  even  though  the  in- 
stitution is  conducted  on  private  account,  and  the 
earnings  go  to  the  individual  proprietor.1 

In  Louisiana  it  is  decided  that  a  building  is  not 
exempt  because  used  for  a  school,  unless  its  owner 
keeps  the  school. 

If  its  owner  rents  the  building,  and  thus  derives 
an  income  from  it,  the  building  is  taxable,  not- 
withstanding it  is  used  for  a  school." 

In  Michigan,  under  a  statute  exempting  from 
taxation  certain  real  estate  belonging  to  library  and 
benevolent  institutions,  it  was  said  that  the  words 

1  Pace  v.  Jefferson  County,  20  111. ,  644. 

'  Indianapolis  t>.  Sturtevnnt,  24  lud.,  391. 

1  Arniand  v.  Dumas,  28  La.  Ann.,  403  ;  New  Orleans  t>.  St. 
Patrick's  Hall  Association,  28  La.  Ann.,  512  ;  New  Orleans  v. 
Lafayette  Ins.  Co.,  28  La.  Ann.,  756. 


EXEMPTION   FROM   TAXATION.  81 

"  belonging  to "  do  not  necessarily  imply  owner- 
ship, unless  upon  the  most  severe  technical  con- 
struction, for  property  belongs  to  its  possessor  so 
long  as  he  has  the  exclusive  right  to  its  posses- 
sion.1 

1  Sisters  of  Charity  v.  Detroit,  9  Mich.,  94. 


32  LAW   OF   PUBLIC  SCHOOLS. 


CHAPTER  III. 

CONDEMNATION    OF    SITES    FOR    SCHOOL- 
HOUSES. 


THERE  is  usually  a  statutory  provision  for  the 
condemnation  of  property  necessary  for  school  pur- 
poses, and  where  such  is  not  the  case  the  general 
principles  of  the  law  of  eminent  domain  would 
warrant  the  condemnation  of  property  for  that 
purpose.1  Ground  may  be  condemned  for  the  erec- 
tion of  a  school-house.4  And  for  a  school-yard. 
Schools  are  a  public  necessity,  and  the  exercise  of 
eminent  domain  is  as  justifiable  as  that  of  taxation 
for  the  same  purpose.1 

School  districts,  as  quasi  corporations  empowered 
by  law  to  hold  property  for  school  purposes,  have 
the  ability  to  acquire  real  property,  necessary  for 
such  purposes,  by  purchase.  They  may  take  by 
gift,  grant,  or  devise  in  the  corporate  name  and 

1  "  Mills  on  Eminent  Domain,"  See.  17  ;  Peckham  ».  School 
District,  7  R.I..  545  ;  Appointment  of  Viewers,  Wyoming 
Com.  Pleas,  4  Leg.  Gazette,  410  ;  Long  ».  Fuller,  68  Pa,.  170. 

*  Townshp  Board  n.  Ilackman,  48  Mo.,  243. 

*  Williams  v.  School  District,  33  Vt.,  271. 


CONDEMNATION  OF  SITES  FOR  SCHOOL-HOUSES.  33 

capacity.  And  where  the  owner  is  willing  that 
his  property  may  be  taken  for  school  purposes 
upon  a  fair  valuation,  ground  for  the  erection  of 
school  buildings  may  be  acquired  by  agreement 
with  such  owner,  and  a  contract  of  that  kind  be 
enforced  as  any  other  contract  for  the  sale  of  real 
property.  It  is  well,  however,  to  bear  in  mind 
that,  while  this  is  true  of  the  corporation,  yet  this 
gives  the  officers  of  such  school  corporation  no 
right  or  power  to  make  such  contract  without  the 
direction  of  the  corporation,  for  this  might  lead 
to  great  abuses. 

School  districts  are  quasi  corporations  of  very 
limited  powers,  and  act  through  the  medium  of 
officers,  or  agents  whose  powers  and  duties  are  con- 
fined to  special  purposes,  and  no  inference  can  be 
drawn  from  the  general  nature  of  their  powers.1 

Where  property  is  acquired  by  deed,  great  care 
should  be  exercised  that  the  grantee  be  named  by 
the  proper  corporate  name. 

A  grant  to  "the  people  of"  a  county,  or  to 
"  the  inhabitants  of  the  C.  and  L.  Union  School 
District,"  there  being  no  corporation  of  that  name, 
is  void,  or  if  it  has  any  effect,  must  vest  the  title 
in  the  individual  inhabitants.2 

1  Harris  v.  School  District,  8  Foster  (N.H.),  58. 
*  Foster  v.  Lane,  30  N.H.  (10  Post.),  305  ;  Jackson  v.  Cory, 
8  Johns.,  385  ;  Hornbeck  v.  Westbrook,  9  Johns.,  73. 


3-t  LAW   OF   PUBLIC   SCHOOLS. 


CHAPTER  IV. 

ELECTIONS. 

1.  TIME  AND  PLACE. — 2.  CONDUCT  OP  THE  ELEC- 
TION AND  IRREGULARITIES  THEREIN. — 3.  SUFFI- 
CIENCY OF  THE  ELECTION. — 4.  IMPERFECT  BALLOTS. 


IT  is  by  means  of  elections  that  the  will  of  the 
electors,  in  the  choice  of  officers  to  manage  the 
affairs  of  the  district,  is  expressed. 

These  elections  are  governed  by  constitutional 
and  statutory  enactments.  The  numerous  litigated 
cases  respecting  elections  have  given  rise  to  a  com- 
mon law  upon  the  subject,  part  of  which  is  bor- 
rowed from  the  common  law  of  England.  The 
succeed  ing  pages  of  this  chapter  are  designed  to 
point  out,  very  briefly,  the  general  principles  gov- 
erning such  questions  as  are  most  likely  to  arise 
upon  school  elections.1 

1  The  general  subject  has  been  treated  of  very  fully  and  ably 
l>y  Hon.  Geo.  W.  McCrary,  now  U.  S.  Circuit  Judge  of  Eighth 
Circuit,  in  his  recent' work  on  the  "  American  Law  of  Elec- 
tions," and  incidentally,  but  thoroughly,  by  Judge  Cooley  in 


ELECTIONS.  35 

1.  TIME  AND  PLACE. 

Time  and  place  are  of  the  substance  of  every  elec- 
tion, and  -the  election-  must  be  held  at  the  time 
and  place  established  by  law.1 

Where  a  notice  of  an  election  for  a  school  dis- 
trict specifies  several  purposes  in  such  a  way  as 
that  no  doubt  is  left  as  to  its  meaning,  it  will  be 
sufficient,  although  there  may  be  an  omission  in  it 
of  a  copulative  conjunction.1 

Where  a  statute  requires  polls  to  be  kept  open 
from  nine  o'clock  A.M.  to  four  o'clock  P.M.,  an 
election  called  for  one  o'clock  P.M.  is  void.* 

A  meeting  of  the  electors  of  a  sub-district  for 
choice  of  a  sub-director  convened  at  twenty 
minutes  before  four  o'clock  and  adjourned  at  ten 
minutes  past  four ;  shortly  afterward,  and  while 
the  president  and  secretary  were  still  in  their 
places,  and  all  who  composed  the  meeting  were 
present,  two  qualified  electors  came  in  and  ten- 
dered their  votes.  Held,  that  they  should  have 
been  received  and  counted.4 

his  work  on  "Constitutional  Limitations,"  to  both  of  which 
the  reader  is  referred  for  a  complete  treatment  of  the  entire 
law  of  elections. 

1  Dickey  v.  Hurlburt,  5  Gal.,  343. 

8  Merritt  v.  Farris,  22  111.,  303. 

3  District  Township  of  Hesper  v.  Independent  District,  etc., 
34  Iowa,  306.  4  The  State,  etc.,  v.  Woolem,  39 


36  LAW   OF   PUBLIC  SCHOOLS. 

Although  the  luW  directs  that  the  polls  shall  bo 
closed  at  a  designated  hour,  and  this  question  is 
at  issue,  unless  it  be  made  to  appear  that  votes 
were  cast  after  that  hour  which  change  the  result, 
the  irregularity  will  not  be  fatal.1 

So,  too,  votes  should  not  be  rejected  merely  be- 
cause the  judges  closed  the  polls  an  hour  before 
the  time  prescribed,  if  there  is  no  evidence  that 
any  voter  offered  to  vote  after  the  polls  were 
closed,  or  was  prevented  from  voting  by  reason  of 
such  closing  of  the  polls.9 

2.  CONDUCT  OF  THE  ELECTION,  AND  THE   IRREGU- 
LARITIES THEREIN. 

Any  mere  irregularity  in  conducting  an  election 
which  does  not  deprive  any  voter  of  his  franchise, 
or  allow  an  illegal  vote,  or  change  the  final  result, 
will  not  vitiate  the  election.' 

An    election    is  not  invalidated  by  the  fact  that 

>  Piattc.  The  People.  29  111.,  51.  See  Locust  Ward  Elec- 
tion, 4  Pa.  Law  Journal,  341,  and  McCrary's  "  Atn.  Law  of 
Elections,"  Sees.  114-141. 

*  Cleland  v.  Porter,  74  111.,  76. 

»  Whipley  r>.  McKune,  12  Cal.,  352  ;  Sprague  r.  Norway, 
31  Cal.,  173  ;  Keller  v.  Chapman,  34  Cal.,  635  ;  Piatt  t>.  People, 
29  III.,  54  ;  Augustiu  t.  Eggleston,  12  La.  Ann.,  841  ;  Lanier 
r.  Gallatas,  13  La.  Ann.,  175  ;  State  ».  Mason,  14  La.  Ann., 
505  ;  People  v.  Cook,  8  N.Y.,  67  ;  McKinney  t>.  O'Connor,  26 
Texas,  5. 


NORMAL  SCHOOL, 

ELECTIONS.  A"^-Ca/.   37 

illegal  votes  were  included,  when  the  number  of 
such  illegal  votes  is  not  enough  to  change  the  ma- 
jority ;!  but  when  the  admission  of  an  improper  vote 
changes  the  result  of  an  election  the  election  is 
void.8 

The  will  of  the  majority  is  to  be  respected  even 
though  it  be  irregularly  expressed.3 

3.  SUFFICIENCY  OF  THE  ELECTION. 

A  majority  of  all  the  votes  cast  is  not  requisite 
to  the  choice  of  an  officer,  except  when  made  so 
by  express  statutory  enactment. 

Where  there  is  no  positive  statute  to  the  contrary, 
a  plurality  of  the  votes  cast  will  suffice  to  elect.4 

That  the  candidate  who  stood  highest  on  the  list 
in  ineligible  does  not  give  the  election  to  the  next 
highest.  In  such  a  case  there  is  no  choice,  and  the 
election  is  invalid.6 

1  Judkins  v.  Hill,  50  K  H.,  140 ;  Third  School  District, 
etc.,  ®.  Gibbs,  2  Gush.  (Mass.),  39;  Sudbury  v.  Steams,  21 
Pick.  (Mass.),  148. 

9  State  v.  The  Judges,  etc.,  13  Ala.,  805. 

3  Juker  v.  Commonwealth,  20  Pa.  St.,  493. 

4  "  Cooley  on  Constitutional  Limitations,"  619. 

5  Saunders  v.  Haynes,  13  Cal.,  145  ;  Opinion  of  the  Judges, 
38  Me.,  597  ;  Sublett  v.  Bed  well,  47  Miss.,  266  ;  State  v.  Boal, 
46  Mo.,  528  ;  People  v.  Clute,  50  N.Y.,  451  ;  Commonwealth 
v.  Cluley,  56  Pa.  St.,  270  ;   State  ».  Giles,  1  Chandler  (Wis.), 


38  LAW   OF   PUBLIC  SCHOOLS. 

The  ballots  cast  at  an  election  are  better  evidence 
than  the  tally  list,  made  from  them,  of  the  num- 
ber of  votes.1 

4.  IMPERFECT  BALLOTS. 

In  an  election  for  school  directors  all  tickets 
voted  which  have  more  names  for  the  offices  than 
there  are  vacancies  to  be  filled  must  be  rejected." 

A  single  piece  of  paper  cast  as  a  ballot  and  con- 
taining the  name  of  a  candidate  more  than  once, 
should  be  counted  as  one  vote,  and  not  rejected  as 
illegally  thrown.* 

If  a  voter  has  written  upon  his  ballot  the  name 
of  a  particular  person  in  connection  with  the  title 
of  office,  and  omits  to  strike  out  the  name  printed 
on  it  in  connection  with  the  same  office,  the  writ- 
ing will  prevail  over  the  printing,  and  evidence  to 
the  contrary  is  not  admissible  to  explain  it.4 

A  ballot  indorsed  for  "  trustees  of  public  schools," 
instead  of  for  "trustees  of  common  schools,"  AV;I- 

112  ;  State  t>.  Smith,  14  Wis.,  497.  Contra,  Carson  t.  McPhet- 
ridge,  15  Ind.,  827  ;  Gulick  t>.  New,  14  Ind.,  93. 

1  State  t>.  The  Judges,  etc.,  13  Ala.,  805  ;  People  t.  Holden. 
28  Col.,  123. 

1  Contested  Election,  0  Phila.  (Pa.),  437.  'And  see  also 
People  v.  Cicott,  10  Mich.,  283  ;  Carpenter  t>.  Ely,  4  Wis.,  420. 

1  People  r.  Holden,  28  Cal.,  123. 

4  McCrary's  "Am.  Law  of  Elections,"  Sees.  408,  409. 


ELECTIONS.  39 

held  sufficient.1  So,  where  a  statute  provided  for 
the  election  of  ''police  magistrates/'  votes  thrown 
for  "police  justices"  were  held  to  be  good." 

It  seems  that  a  mere  defect  in  the  naming  of 
a  candidate  will  not  render  the  ballot  illegal,  if 
the  intent  of  the  voter  can  fairly  be  gathered  from 
it,  as  where  J.  W.  J.  was  a  candidate  for  election 
in  a  district  where  there  was  no  J.  J. ,  it  was  held 
that  votes  cast  for  J.  J.  were  presumably  intended 
for  J.  W.  J.,  and  should  have  been  counted  for  him.3 

If  the  sound  is  the  same,  errors  of  orthography 
will  not  authorize  the  rejection  of  the  ballot.4 

Technical  nicety  should  not  be  allowed  to  pre- 
vail over  the  intention  of  the  voter  fairly  gathered 
from  the  ballot  and  facts  of  general  notoriety. 

Where  one  Joseph  Talkington  was  a  candidate 
for  constable,  it  was  held  that  votes  cast  for  "  Talk- 
ington" for  that  office  should  be  counted  for 
Joseph.5  But  where  the  word  "Pence"  was  writ- 

1  People  v.  McManus,  34  Barb.,  620. 

2  People  v.  Mattesbn,  17  111.,  167. 

3  People  v.  Kennedy,  37  Mich.,  67. 

4  People  v.  May  worm,  5  Mich.,  146. 

6  Talkington  v.  Turner,  71  111.,  234.  And  see  Attorney-Gen- 
eral v.  Ely,  4  Wis.,  430  ;  People  v.  Ferguson,  8  Cowen,  102  -, 
People  v.  Seaman,  5  Denio,  409  ;  People  v.  Cook,  8  K  Y.  (4  Seld.) 
67  ;  People  v.  Cicott,  16  Mich.,  283  ;  People  v.  Pease,  27 
N.  Y.,  64. 


40  LAW   OF   PUBLIC   SCHOOLS. 

ten    on   a  ticket   for   sheriff,  and   one   Spence   was 
a   candidate,  the  vote  was  rejected.1 

Where,  in  a  ballot  a  name  placed  above  another 
by  a  slip  partly  obliterates  it,  it  will  be  sufficient 
if  it  t;hows  the  intent.1 

1  State  v.  The  Judges,  etc.,  13  Ala.,  805. 
9  People  t>.  Cicott,  16  Mich.,  283. 


SCHOOL    OFFICERS.  41 


CHAPTER  V. 

SCHOOL    OFFICERS. 

1.  UNITED  STATES  COMMISSIONER  OF  EDUCA- 
TION.— 2.  STATE  SUPERINTENDENT  OF  PUBLIC  IN- 
STRUCTION.— 3.  COUNTY  SUPERINTENDENT. — 4.  DI- 
RECTORS, TRUSTEES,  ETC.  :  A.  Their  Powers  and 
Duties ;  B.  Their  Contracts ;  C.  Their  Liability 
for  Negligence. — 5.  TREASURER. — 6.  VACANCIES  BY 
OPERATION  OF  LAW. 


1.  UNITED  STATES    COMMISSIONER  OF  EDUCATION. 

BY  Act  of  March  2,  1867,  Congress  established 
a  department,  since  known  as  the  Bureau  of  Edu- 
cation, "  for  the  purposes  of  collecting  such  sta- 
tistics and  facts  as  shall  show  the  condition  and 
progress  of  education  in  the  several  States  and 
Territories,  and  of  diffusing  such  information  re- 
specting the  organization  and  management  of  school 
systems  and  methods  of  teaching  as  shall  aid  the 
people  of  the  United  States  in  the  establishment 
and  maintenance  of  efficient  school  systems,  and 
otherwise  promote  the  cause  of  education  through- 
out the  country."  It  was  established  as  an  iude- 


42  LAW   OF  PUBLIC   SCHOOLS. 

pendent  bureau,  but  was  subsequently  attached  to 
the  Department  of  the  Interior  by  Act  of  July  20, 
18G8. 

The  head  of  this  bureau  is  called  the  Commis- 
sioner of  Education,  and  it  is  his  duty  to  present 
annually  to  Congress  a  report  embodying  the  results 
of  his  investigations  and  labors,  together  with  a 
statement  of  such  facts  and  recommendations  as 
will,  in  his  judgment,  subserve  the  purpose  for 
which  the  office  is  established.' 

In  the  Centennial  message  of  the  President  an 
amendment  to  the  Constitution  was  suggested 
which  should  make  public  education  a  subject  of 
national  cognizance.  As  the  matter  now  stands, 
public  instruction  in  this  country  is  left  entirely 
to  the  States,  each  of  which  frames  and  regulates 
its  own  system  by  appropriate  constitutional  pro- 
visions and  legislation. 

Although  in  the  different  States  the  details  vary, 
yet  the  management  of  the  schools  is  in  the  hands 
of  officers  chosen  by  the  people,  and  whose  duties 
are  everywhere  much  the  same.  The  National  Gov- 
ernment has  been  very  liberal  in  the  donation  of 
lands,  and  of  the  proceeds  arising  from  the  sale 
thereof,  yet  the  schools  have  been  supported  main- 
ly by  voluntary  taxation,  voted  by  the  people,  and 
this  taxation  and  the  apportionment  of  interest  ou 

1  Rev.  Stat.  U.  S.,  Sees.  516,  517,  and  518. 


SCHOOL   OFFICERS.  43 

the  permanent  funds  have  necessitated  the  employ- 
ment of  officers  essentially  the  same  in  nearly  all 
the  States  and  Territories. 

It  is  the  object  of  this  chapter  to  present  the 
decisions  upon  questions  of  official  duties  and  lia- 
bilities which  are  common  to  all  the  States. 

2.  STATE    SUPERINTENDENT    OF    PCJBLIC   INSTRUC- 
TION. 

The  State  Superintendent  of  Schools,  or  Super- 
intendent of  Public  Instruction,  is  the  highest 
officer  in  the  common  school  system. 

This  office  exists  under  some  title  in  every  one 
of  the  States  and  Territories,  and  in  those  States 
in  which  attempts  have  been  made  to  abolish  it,  the 
movement  has  proved  disastrous  to  the  school  in- 
terests, and  the  office  has  been  restored. 

It  is  generally  the  duty  of  the  State  Superin- 
tendent to  supervise  all  of  the  public  schools  in 
his  State,  to  call  upon  the  officers  under  him  for 
reports  upon  matters  concerning  which  they  are 
"by  law  required  to  gather  information,  to  ascertain 
the  number  of  children  residing  in  each  district 
and  the  number  attending  school,  the  amount 
paid  for  salaries,  the  number  of  school-houses  and 
the  amount  expended  in  building  school-houses, 
and  to  report  this  information,  together  with  such 


44:  LAW   OF   PUBLIC   SCHOOLS. 

other  information  as  he  may  acquire  concerning 
the  operation  of  the  common  school  system.  He 
also  tries  and  determines  appeals  from  inferior 
officers  upon  questions  of  school  law,  and  perform* 
duties  pertaining  to  the  distribution  of  the  State 
school  funds. 

He  ought  also  to  recommend  such  changes  in 
the  law  or  such  additional  legislation  as  he  may 
deem  beneficial  to  the  system  of  public  education.1 

The  duties  of  this  officer  and  the  law  governing 
his  actions  are  usually  made  explicit  by  statute. 

3.  COUNTY  SUPERINTENDENT. 

In  most  of  the  States  there  is  in  each  county  an 
officer  known  by  the  title  of  County  Superinten- 

1  The  Bureau  of  Education  was  established  by  Congress 
because  of  the  numerous  inquiries  by  foreign  educators  and 
others  for  statistics  and  information  concerning  public  educa- 
tion in  the  United  States.  The  reports  of  that  bureau  are 
now  exchanged  and  sent  to  the  various  foreign  nations,  and 
their  fulness  and  accuracy  depend  much  on  the  readiness  with 
which  State  superintendents  co-operate  with  the  bureau.  If 
the  State  superintendent's  reports  are  not  full  his  State  will  be 
imperfectly  represented.  This  is  a  matter  demanding  likewise 
the  especial  attention  of  the  city  supeintendcnts.  Secondary 
or  hitrh-school  education  has  heretofore  been  very  poorly  rep- 
resented in  the  reports  of  the  bureau,  and  it  is  doubtless  owing 
to  a  lack  of  authentic  information  from  city  superintendents, 
or  from  them  through  the  medium  of  the  State  superintcndeuts. 


SCHOOL   OFFICERS.  45 

dent,  or  some  similar  title,  who  serves  as  the  or- 
gan of  communication  between  the  State  Superin- 
tendent and  the  toAvnship  or  district  authorities. 
His  duties  vary  in  the  different  States,  but  it  is 
usually  his  duty  to  gather  statistics  as  to  the  num- 
ber of  youth  of  school  age  in  the  county,  and  in 
each  school  district  therein,  and  the  number 
taught,  and  such  other  information  as  is  necessary 
to  exhibit  the  true  condition  of  the  schools  under 
his  charge.  This  is  embodied  in  a  report  to  the 
State  Superintendent.  It  is  also  generally  his  duty 
to  examine  applicants  for  teachers'  certificates,  and 
to  grant  certificates  to  such  as  possess  the  neces- 
sary qualifications,  and  to  exercise  such  supervision 
of  the  schools  in  his  county  as  will  advance  the 
public  interests  in  the  matter  of  education. 

In  some  of  the  States,  particularly  the  New 
England  States,  there  is  no  such  county  officer, 
but  the  reports  from  the  towns  are  made  directly 
to  the  State  Superintendent. 

The  County  Superintendent  is  not  entitled  to  an 
injunction  to  restrain  one  frorn  teaching  on  the 
ground  that  he  is  teaching  without  a  certificate  of 
qualifications. ' 

Where  the  statute  vests  a  discretionary  power  in 
a  County  Superintendent  in  granting  licenses  to 
teach,  the  judgment  of  the  court  will  not  be  sub- 

1  Perkins  v.  Wolf  et  al,  17  Iowa,  228. 


46  LAW   OF   PUBLIC  SCHOOLS. 

stituted  for  that  of  the  officer,  and  mandamus  will 
not  lie  to  compel  him  to  issue  a  license,  but 
where  he  wholly  fails  to  act  on  an  application  he 
may  be  compelled  by  mandamus  to  take  action 
thereon. ' 

It  is  a  general  principle  lying  at  the  base  of  the 
law  of  mandamus  that  the  courts  will  not  interfere 
with  nor  attempt  to  control  the  judgment  or  dis- 
cretion of  any  officer  whose  official  duties  call  for 
the  exercise  of  some  degree  of  judgment  or  discre- 
tion. Where  such  an  officer  wholly  refuses  to  act 
mandamus  will  lie  to  compel  action,  but  not  to 
control  such  action,  nor  to  substitute  the  discretion 
or  judgment  of  the  court  for  that  of  the  officer.9 

An  officer  whose  duties  are  judicial  or  quasi- 
judicial  is  not  liable  for  errors  of  judgment  or 
discretion  in  the  discharge  of  those  duties  unless 
he  acts  from  corrupt  or  malicious  motives. 

In  an  action  on  the  case  against  the  Superin- 
tendent of  Schools  of  a  county  for  illegally  revok- 
ing a  teacher's  certificate,  the  plaintiff,  in  order  to 
show  malice,  is  not  compelled  to  prove  personal 
hatred  or  ill-will  ;  but  if  the  defendant  acted  rash- 

1  Bailey  t.  Ewart,  Sup.  Court  of  Iowa,  October  23,  1879. 
Reported,  "  Northwestern  Reporter,"  vol.  ii.  N.  8.  No.  11, 
p.  1009. 

*  High's  "  Extraordinary  Legal  Remedies,"  Sees.  24,  34,  42. 


SCHOOL   OFFICERS.  47 

ly,  wickedly,  and  wantonly  in  revoking  the  certifi- 
cate, the  jury  may  infer  malice.1 

4.  DIRECTORS,  TRUSTEES,  ETC. 

A.  Their  Powers  and  Duties.  A  board  of 
school  directors,  though  a  corporation,  is  pos- 
sessed of  certain  specially  defined  powers,  and 
can  exercise  no  others,  except  such  as  result  from 
fair  implication.8 

In  Iowa  it  is  held  that  the  duties  of  school  di- 
rectors respecting  the  discharge  of  teachers,  im- 
posed by  Section  1734  of  the  Code  of  1873,  are  of 
a  judicial  character." 

The  officers  charged  with  the  control  and  man- 
agement of  the  schools  have  a  right  to  dismiss  a 
teacher  employed  in  said  schools  upon  breach  of 
the  contract,  either  by  reason  of  failure  to  teach 
or  because  of  incompetency,4  and  such  officers  are 
not  liable  in  damages  if  they  honestly  err  in  the 
discharge  of  this  duty.4 

1  Love  v.  Moore,  45  111.,  12. 

8  Peers  v.  Board  of  Education,  72  111..  508. 

3  Smith  v.  The  District  Township  of  Knox,  42  la.,  522. 

4  Crawfordsville  v.  Rays,  42  Ind. ,  200. 

'  5  Donahoe  v.  Richards,  38  Me.,  164  ;  Burton  v.  Fulton,  49 
Pa.  St.,  151  ;  Morrison  v.  McFarland,  51  Ind.,  206  ;  Bays  v. 
The  State,  6  Neb.,  167.  But  see  contra,  McCutchen  v.  Wind- 
sor, 55  Mo.,  149,  where  the  court  held  that  a  statute  making  it 


48  LAW   OF   PUBLIC   SCHOOLS. 

If  they  act  wantonly  and  maliciously,  it  gives  a 
cause  of  action  against  them  personally,1  but  mal- 
ice  and  injury  must  be  affirmatively  shown  to  have 
been  the  impelling  motives,  even  though  no  reason 
was  assigned  for  the  removal  of  the  teacher.* 

A  letter  from  an  inhabitant  of  a  school  district 
to  the  school  committee,  complaining  of  a  school 
teacher,  is  privileged,  if  written  with  an  honest 
purpose  and  for  the  public  good.* 

"Where  a  suit  is  instituted  in  the  individual 
names  of  school  directors  in  reference  to  a  matter 
in  which  they  are  only  interested  in  their  corporate 
capacity,  it  is  proper  to  amend  the  title  of  the 
cause  by  striking  out  the  individual  names  of  the 

"  the  duty  of  the  directors  to  manage  and  control  its  local  in- 
terests  and  affairs, "  and  giving  them  "  power  to  hire  legally 
qualified  teachers,  "gives  the  directors  no  authority  to  dismiss  a 
teacher,  unless  for  good  and  sufficient  cause  shown,  which,  in 
his  action  against  them  for  discharging  him  would  be  wholly  a 
question  for  the  jury. 

1  Clinton  School  District's  Appeal,  56  Pa.  St.,  315. 

*  Burton  v.  Fulton,  49  Pa.  St.,  151. 

»  "Townshendon  Slander  and  Libel,"  385  and  899;  Bod- 
well  t>.  Os;:ood,  3  Pick.,  379.  It  is  actionable  to  call  a  school- 
mistress a  dirty  slut,  or  to  charge  her  with  being  insane,  or  to 
charge,  by  writing,  a  school-teacher  with  making  a  false  report 
to  the  school  visitors,  and  with  general  untruthfuluess  or  with 
a  want  of  chastity.  "  Starkie  on  Slander,"  *  126  ;  "  Town- 
shend  on  Slander  and  Libel,"  272. 


SCHOOL   OFFICEES.  49 

directors,  and  substituting  their  corporate  name. 
The  individual  names,  in  such  case,  are  regarded 
as  surplusage.1 

A  suit  or  defence  for  a  district  must  be  con- 
ducted in  its  corporate  capacity  by  its  proper  offi- 
cers. An  individual  member  of  a  school  district 
has  no  right  to  appear  and  be  heard  in  defence  of 
an  action  against  the  district." 

A  verbal  contract  of  a  school  board  employing 
an  attorney  is  valid  although  never  entered  on  the 
minutes.3 

In  Iowa  the  president  of  a  school  district  town- 
ship has  no  authority  to  employ  counsel  at  the 
expense  of  the  district,  unless  in  a  suit  brought  by 
or  against  the  district,  and  an  appeal  to  the 
county  or  State  Superintendent  to  contest  the  cor- 
rectness of  an  order  of  the  board  is  not  such  a 
suit.4 

The  board  has  no  right  to  make  acceptances  of 
orders  or  bills  of  exchange  so  as  to  bind  the  dis- 
trict,6 unless  expressly  authorized  by  statute. 

Where    a    board    of    education  .is,    by    statute, 

1  Shoudy  v.  School  Directors,  32  111.,  290. 

2  Lane  v.  School  District,  10  Mete.  (Mass.),  462. 

3  Page  v.  Township  Board,  etc.,  59  Mo.,  264. 

*  Templin  &  Sons  v.    District  Township  of  Fremont,  36 
Iowa,  411. 
6  Peers  v.  Board  of  Education,  72  111.,  508. 


50  LAW   OF   PUBLIC  SCHOOLS. 

made  a  body  corporate,  individual  members  acting 
separately,  although  a  majority,  cannot  contract  a 
debt  thereof,  or  direct  the  issuance  of  an  order  to 
pay  it1 

School  officers  are  not  liable  to  an  assignee  of  a 
school  order  for  constructive  fraud  in  issuing  an 
order  they  had  no  power  to  issue.* 

In  Kentucky,  school  trustees  failing  to  raise 
and  collect  the  school  funds  as  required  by  law 
are  personally  liable  to  the  teacher  for  a  failure  to 
pay  him  his  salary  as  agreed.* 

Power  to  establish  and  keep  up  a  system  of 
graded  schools  implies  authority  to  appoint  a  su- 
perintendent thereof.' 

A  member  of  a  school  board  or  school  commit- 
tee has  a  right  to  order  from  the  school-room  a 
boy  who  addresses  him,  in  the  presence  of  other 
pupils,  in  a  profane  and  insulting  manner,  and 
where  the  pupil  refuses  to  go  he  may  be  ejected, 
no  more  force  being  used  than  may  be  necessary. 
In  such  a  case  the  pupil  cannot  recover  as  for  a 
wrongful  expulsion.* 

1  Ohio  v.  Treasurer  of  Liberty  Township.  22  Ohio  St.,  144. 
1  Boardman  t>.  Ilayne  et  al..  29  Iowa,  339. 
s  Ferguson  r>.  True  and  Walker,  3  Bush  (Ky.),  255. 
4  Spring  v.  Wright,  03  111.,  90;  Stuart  v.   School  District, 
etc.,  30  Mich.,  «9. 
&  Peck  v.  Smith,  41  Conn.,  442. 


SCHOOL  OFFICERS.  51 

B.  Their  Contracts.  A  member  of  a  district 
school  board  cannot  make  a  contract  with  the 
board  of  which  he  is  a  member,  for  the  building 
of  a  school-house.  Such  contract  is  void  upon 
grounds  of  public  policy.1 

The  board  of  directors  of  a  district  township 
has  no  authority  to  purchase  lightning-rods  for 
school-houses,  nor  to  give  the  obligation  of  the 
district  township  therefor.2 

School  charts,  exhibiting  and  illustrating  matters 
to  be  taught  to  pupils,  are  not  necessary  appendages 
to  a  school-house.3 

In  Iowa  the  board  of  directors  have  no  power  to 
make  contracts  for  the  purchase  of  maps,  charts, 
and  other  school  apparatus,  without  being  pre- 
viously authorized  by  a  vote  of  the  electors.4 

The  directors  have  no  power  to  make  an  express 
contract  of  the  character  specified,  unless  thereto 
authorized.  They  could  not  so  act  as  to  raise  an 

1  Pickett  v.  School  District,  25  Wis.,  651  ;  Hewitt  v.  Board 
of  Education,  etc.,  Sup.  Court  of  Illinois,  1880.     "  Northwest- 
ern Reporter,"  Illiuois  Supplement,  voL  L,  No.  6,  p.  462. 

2  MonticeDo  Bank  v.  District  Township,  etc.,  Sup.  Court  of 
Iowa,  June  10th,  1879  ;  Wolf  v.  Independent  School  District, 
etc.,  Sup.  Court  of  Iowa,  June  13th,  1879. 

3  Gibson  v.  School  District,  etc.,  36  Mich.,  404. 

4  Taylor  v.  District  Township  of  Otter  Creek,  26  Iowa,  281  ; 
Manning  «.  District  Township  of  Van  Buren,  28  Iowa,  332  ; 
Taylor  «.  Township  of  Wayne,  25  Iowa,  447. 


52  LAW  OF  PUBLIC  SCHOOLS. 

implied  contract,  or  ratify  the  express  one  by  the 
acceptance  and  acquiescence  in  the  use,  by  the 
schools  in  the  sub-districts,  of  the  apparatus  pur- 
chased.1 

That  such  maps,  charts,  and  apparatus  were  by 
the  board  distributed  among  the  several  sub-dis- 
tricts, and  used  in  the  schools  thereof  with  the 
knowledge  of  the  directors  and  electors,  and  that 
no  steps  were  taken  by  the  electors  to  repudiate 
the  contract,  does  not  amount  to  a  ratification  of 
it.  Nothing  short  of  an  express  ratification  of  the 
electors  in  their  corporate  capacity  would  suffice.* 

An  independent  district  may  provide  for  the 
teaching  of  music  in  its  schools,  and  the  board 
has  power  to  purchase  by  verbal  contract  a  musi- 
cal instrument  to  be  paid  for  out  of  any  unappro- 
priated funds  of  the  district.' 

There  is  a  marked  difference  between  the  rights 
of  an  assignee  of  a  school  order  and  those  of  an 
assignee  of  a  promissory  note  or  bill  of  exchange. 
The  assignee  of  a  school  order  must  at  his  peril 
ascertain  what  defences  may  exist  against  its  col- 
lection.4 

1  Taylor  c.  Township  of  Wayne,  25  Iowa,  447. 
»  Id. 

*  Bellmeyer  r.  Independent  District  of    Marshalllown,  44 
Iowa,  564. 
4  Newell  t>.  School  Directors,  68  111.,  514  ;  School  District 


SCHOOL  OFFICERS.  53 

An  action  may  be  maintained  against  a  school 
district  on  an  order  drawn  by  the  proper  officer 
thereof.  The  creditor  of  a  corporation  is  not  re- 
stricted to  mandamus  as  his  sole  remedy.1 

Where  a  person  acts  in  his  official  capacity, 
which  is  disclosed  in  the  contract  itself,  he  is  not 
personally  liable  on  the  contract,  although  he  has 
failed  to  affix  to  his  signature  his  official  title.9 

C.  Their  Liability  for  Negligence.  No  private 
action  for  neglect  of  corporate  duty,  unless  given 
by  statute,  lies  against  any  quasi  corporation  as 
such. 

In  the  absence  of  a  statute  creating  such  lia- 
bility a  board  of  education  is  not  liable  in  its  cor- 
porate capacity  for  damages  for  an  injury  result- 
ing to  a  pupil  while  attending  a  public  school, 
from  its  negligence  in  the  discharge  of  its  official 
duty  in  the  erection  and  maintenance  of  a  public 
school  building  under  its  charge,  nor  for  an  in- 
jury sustained  by  a  scholar  attending  a  public 
school  from  a  dangerous  excavation  in  the  school- 

v.  Stough,  4  Neb.,  357  ;  Boardman  v.  Hayne  et  al.,  29  Iowa, 
339  ;  Bellmeyer  v.  Independent  District,  etc.,  44  Iowa,  564 ; 
Sheffield  School  Township  v.  Andress,  56  Ind.,  157. 

1  Cross  v.  The  District  Township,  etc.,  14  Iowa,  28. 

*  Baker  et  al.  v.  Chambles,  4  G.  Gr. ,  428  ;  Lyon  v.  Adamson 
et  al.,  7  Iowa,  509  ;  Harvey  v.  Irvin  et  al.,  11  Iowa,  82.  See, 
however,  Bayliss  v.  Pearson,  15  Iowa,  279. 


54  LAW  OF  PUBLIC  SCHOOLS. 

house  yard,  owing  to  the  negligence  of  snch  school 
board.1 

But  in  Bassett  v.  Pish  et  al.,  19  N.  Y.  Supreme 
Court  (12  Hun),  209,  it  was  held  that  the  trus- 
tees of  the  Union  Free  Schools,  having  the  duty 
imposed  on  them  by  statute  of  keeping  schools  in 
repair,  and  being  supplied  with  the  necessary 
means,  they  are  personally  and  individually  liable 
to  any  person  for  special  damages  sustained  by 
reason  of  omission  or  negligence  on  their  part. 
This  was  reversed  in  the  Court  of  Appeals,  on 
the  ground  that  the  •  trustees  of  a  Union  Free 
School  district  is  a  corporation  complete,  and  not 
a  quasi  corporation,  and  that  the  individual  trus- 
tees are  not  liable,  the  negligence  being  the  neg- 
ligence of  the  corporation,  for  which  it  alone  is 
liable.1 

5.  TREASURER. 

The  liability  of  the  treasurer  of  a  school  district 
is  absolute  for  all  funds  which  come  into  his 
hands  in  his  official  capacity,  and  in  case  of  loss 
cannot  be  varied  or  diminished  by  reason  of  the 
cause  or  manner  of  the  loss.' 

1  Pinch  v.  The  Board  of  Education,  30  Ohio  St.,  87  ;  Bige- 
low  «.  Randolph,  14  Gray,  541  ;  II.  Kent's  Coram.,  *  274. 
1  Bassett  v.  Fish,  75  N.Y.  (Court  of  Appeals),  303. 
8  The  District  Township  of  Bluff  Creek  v.'  Hardinbrook,  40 


SCHOOL   OFFICERS.  55 

Where  the  loss  occurs  through  the  failure  of  a 
bank,  the  treasurer  is  liable  on  his  bond,  although 
he  was  not  guilty  of  want  of  prudence  or  care  in 
failing  to  ascertain  its  financial  condition.1  I 

Where  the  treasurer  deposited  money  of  the  dis- 
trict with  his  banker  to  his  own  individual  credit, 
which  money  was  intended  to  meet  certain  bonds 
of  the  district  then  about  to  fall  due  at,  and 
which  were  payable  at  the  same  bank,  and  the 
treasurer  so  informed  the  banker,  and  directed 
him  verbally  so  to  apply  it,  when  the  bonds  should 
be  presented,  and  while  the  matter  was  in  this 
condition  the  bank  failed,  resulting  in  the  loss  of 
the  money,  it  was  held  that  the  banker  was  the 
agent  of  the  treasurer  and  not  of  the  district, 
and  that  the  money  was  recoverable  by  the  dis- 
trict in  an  action  on  the  treasurer's  bond.2  The 
treasurer  is  liable  absolutely  for  all  money  of  the 
district  coming  into  his  hands,  which  he  has  not 

Iowa,  130  ;  District  Township  of  Taylor  v.  Morton,  37  Iowa, 
550  ;  District  Township  of  Union  v.  Smith,  39  Iowa,  9  ;  Lind- 
sey  v.  Marshall,  20  Miss.  (12  Smed.  &  M.),  587  ;  Ward  v. 
School  District  No.  15,  Colfax  County,  Sup.  Court  of  Ne- 
braska, March  18th,  1880,  "  Northwestern  Reporter,"  vol.  iv. 
(N.  8.),  No.  13,  p.  547. 

1  The  State  v.  Powell,  67  Mo.,  395. 

*  Ward  ».  School  District  No.  15,  etc.,  Sup.  Court  of  Ne- 
braska, March  18th,  1880,  "  Northwestern  Reporter,"  vol.  iv. 
(N.  8.),  No.  13,  p.  547  (1001). 


56  LAW   OF   PUBLIC   SCHOOLS. 

lawfully  disbursed,  and  the  school  district  has  no 
power  to  release  him  from  liability  for  money  lost 
or  misapplied  by  him.1 

And  where  he  resigns  and  absconds  and  fails  to 
pay  over  the  money  in  his  hands,  as  such  treas- 
urer, to  his  successor,  no  demand  therefor  is  nec- 
essary to  maintain  suit  upon  his  official  bond.' 

If  a  school  treasurer  releases  a  mortgage  given 
to  secure  a  debt  due  the  school  fund  of  his  town- 
ship, without  an  order  of  the  board,  he  will  be  lia- 
ble upon  his  official  bond  for  any  loss  sustained  in 
consequence  thereof.8 

6.  VACANCIES  BY  OPERATION  OF  LAW. 

The  acceptance  by  a  school  officer  of  another 
office  incompatible  with  the  school  office  renders 
such  school  office  vacant.4 

The  duties  of  teacher  and  school  trustee  are  in- 
compatible, and  the  appointment  of  a  trustee  as 
teacher,  and  the  acceptance  thereof,  renders  the 
office  of  school  trustee  vacant.* 

1  Ward  ».  School  District  No.  15,  etc.,  Sup.  Court  of  Ne- 
braska, March  18th,  1880,  "Northwestern  Reporter,"  vol.  iv. 
(N.  S.),  No.  13,  p.  547  (1001). 

1  Jenks  c.  School  District,  18  Kan.,  356. 

•  Board  of  Trustees  v.  Misenheimcr,  78  III. ,  22. 
.  4  Ferguson  c.  True  and  Walker,  3  Bush  (Ky.),  255  ;  Cotton 
r.  Phillips,  56  N.  H.,  220. 

»  Ferguson  t>.  True  and  Walker,  3  Bush  (Ky.),  255. 


SCHOOL  OFFICERS.  57 

The  offices  of  prudential  committee  and  auditor 
of  a  school  district  are  incompatible,  and  one  who 
is  elected  to  both  offices  at  the  same  meeting  and 
accepts,  the  latter  thereby  declines  the  former.1 

1  Cotton  9.  Phillips,  56  N.  H.,  220. 


58  LAW   OF   PUBLIC  SCHOOLS. 

CHAPTER  VI. 

USE   OF    SCHOOL   PROPERTY. 

Itf  general  the  school  property  is  to  be  used 
only  for  the  purposes  of  secular  education,  yet  in 
many  of  the  States  school-houses  are  temporarily 
and  occasionally  used  for  other  purposes,  and  such 
temporary  use  has  been  held  lawful. 

A  school-house  may  be  used  for  township  pur- 
poses.1 And  the  district  electors  may,  at  a  meet- 
ing for  that  purpose,  lawfully  direct  the  use  of  a 
school-house  for  a  private  school,  for  the  time  be- 
ing merely,  but  can  confer  no  right  of  possession, 
for  any  definite  time,  upon  any  one.  A  lease,  by 
trustees,  of  a  public  school-house  for  the  purpose 
of  having  a  private  or  select  school  taught  therein 
for  a  term  of  weeks,  is  in  violation  of  their  trust, 
and  such  use  may  be  restrained  at  the  suit  of  n 
resident  taxpayer  of  the  district.' 

In  Iowa  the  district  township  electors  have  the 
legal  power  to  direct  the  school-houses  therein  to 
be  used  for  the  purpose  of  Sabbath-schools,  re- 

1  Trustees,  etc.,  v.  Osborne,  9  Ind.,  458. 
*  Chapin  t>.  11111,  24  Vt.,  528  ;  Weir  e.  Day,  Sup.  Court  of 
Ohio,  1879,  "  Central  Law  Journal,"  vol.  ix.,  p.  398. 


USE   OF  SCHOOL   PROPERTY.  59 

ligions  worship,  etc.,  and  such  use  is  held  not  to 
be  in  conflict  with  Section  3,  Article  1,  of  the 
Constitution  of  Iowa,  which  provides  that  no  law 
shall  be  passed  respecting  the  establishment  of  re- 
ligion, nor  shall  any  person  be  compelled  to  pay 
tithes,  taxes,  or  other  rates  for  building  or  repair- 
ing places  of  worship.1 

In  the  same  case  it  was  held  that  if  the  direct- 
ors refuse  to  allow  such  use,  mandamus  will  lie. 

The  power  to  permit  the  school-houses  in  a  dis- 
trict to  be  used  for  the  purpose  of  religious  wor- 
ship and  Sabbath-schools  is  conferred  upon  the 
electors  of  the  district  legally  assembled  by  a  statute 
authorizing  them  "  to  direct  the  sale  or  other  dis- 
position to  be  made  of  any  school-house  .  .  .  that 
may  belong  to  the  district.8 

In  Illinois  it  has  been  decided  that  the  tem- 
porary use  of  a  school-house  for  religious  purposes 
is  not  forbidden  by  the  Constitution  of  that  State. 
An  incidental  use  of  a  school-house  for  religious 
purposes,  not  interfering  with  school  purposes,  is 
not  in. any  reasonable  sense  inconsistent  with  the 
faithful  application  of  the  property  to  school  pur- 
poses. Religion  and  religious  worship  are  not  so 
placed  under  the  ban  of  the  Constitution  of  that 

1  Davis  v.   Boget  et  al..   Sup.    Court  of  Iowa,   December, 
Term,  1878,  "  West.  Jurist,"  vol.  xiii.,  No.  3.  50  la.  11. 
8  Townshend  v.  Hagan  et  al. ,  35  Iowa,  194. 


60  LAW   OF   PUBLIC   SCHOOLS. 

State  that  they  may  not  be  allowed  to  become  the 
recipient  of  any  incidental  benefit  whatever  from 
the  public  bodies  or  authorities  of  the  State.1 

In  Connecticut,  however,  it  was  held  that  the 
school  property  could  not  be  used  for  religious 
purposes  against  the  objection  of  any  single  tax- 
payer in  the  district,  even  though  he  may  have 
voted  to  allow  such  use.  And  an  injunction  will 
be  granted  the  taxpayer  because  he  has  no  other 
remedy."  The  force  of  that  decision  is  greatly 
abated  by  the  fact  that  two  of  the  five  judges  ably 
dissented  from  the  majority  opinion. 

The  trustees  of  a  school  district  may,  subject  to 
the  control  of  the  district  meeting,  lawfully  per- 
mit the  district  school-house  to  be  used  out  of 
ordinary  school  hours  for  the  purpose  of  private 
instruction  in  vocal  music  of  the  district  scholars 
and  of  others  residing  in  the  district,  and  it  is  no 
objection  to  such  use  that  the  teacher  is  compen- 
sated by  private  subscription,  or  otherwise.* 

1  Nichols  t>.  The  School  Directors,  etc.,  Sup.  Court  of 
Illinois,  November  10th,  1879,  "Chicago  Legal  News,"  vol. 
xii.,No.  11,  Whole  No.  580. 

*  Schofleld  v.  Eighth  School  District,  27  Conn.,  499.  Subse- 
quently it  was  enacted  that  any  district  may,  by  a  two  thirds 
vote,  allow  the  school-house  or  school-houses  to  be  used  for 
any  other  purpose  than  school,  when  not  in  use  for  school  pur- 
poses. Laws  of  Connecticut  (1872),  Rev.  of  1875,  tit.  2,  c.  5, 
sec.  29.  *  Appeal  of  Barnes,  6  R.  I.,  591. 


USE   OF   SCHOOL   PROPERTY.  61 

In  Missouri1  and  Wisconsin2  the  law  may  be 
regarded  as  settled  that  the  board  of  directors  of 
a  school  district  cannot  authorize  the  use  of  a 
school-house  for  any  other  than  school  purposes. 

In  some  of  the  States  it  is  expressly  provided 
by  statute  that  the  trustees  may  permit  the  school- 
house  or  school-houses  of  the  district  to  be  used 
for  literary,  religious,  or  township  purposes,  when 
not  in  use  for  school  purposes. 

The  axithority  to  permit  the  school-house  or 
school-houses  of  the  district  to  be  used  for  other 
than  school  purposes  is  expressly  conferred  upon 
the  trustees  by  statute  in  Kansas,  New  Jersey,  and 
"West  Virginia.8 

In  Maryland  no  school-house  can  lawfully  bo 
used  for  any  other  than  public  school  purposes  and 
district  school  meetings,  unless  by  consent  of  the 
Board  of  County  School  Commissioners,  or  a  ma- 
jority of  them.* 

1  Dorton  v.  Hearn,  67  Mo.,  301. 

8  School  District  No.  8  v.  Arnold,  21  Wis.,  657.  And  see 
Spencer  «.  Joint  School  District,  etc.,  15  Kan.,  259 — since 
changed  by  statute. 

8  "  Compiled  Laws  of  Kansas,"  chap,  xcii.,  art.  4,  sec.  43  ; 
"Rev.  of  Statutes  of  New  Jersey,"  p.  1077,  sec.  39,  subdiv. 
12  ;  "Rev.  Statutes  of  West  Virginia"  (1879),  chap,  clxxiv., 
sec.  15,  p.  999  (Kelley's). 

4  "  Rev.  Code  of  Maryland"  (1878),  arfc.  27,  sec.  29. 


62  LAW   OF   PUBLIC  SCHOOLS. 

In  Connecticut  it  is  provided  that  any  school 
district  or  town  may,  by  a  vote  of  two  thirds  of 
those  present  at  any  legal  meeting,  allow  its 
school-house  or  houses,  when  not  in  use  for  school 
purposes,  to  be  used  for  any  other  purpose.1 

In  Maine  a  school  district  has  power,  at  any 
legal  meeting  called  for  the  purpose,  to  allow  the 
school-house  to  be  used  for  meetings  of  religious 
worship,  lectures,  and  other  similar  purposes.* 

Where  such  use  of  school  property  is  unlawful, 
an  injunction  will  be  granted  at  the  suit  of  a  tax- 
payer who  shows  that  the  school-house  has  been 
built  partly  out  of  taxes  that  he  has  paid,  that  ho 
has  children  attending  school  in  said  school-house, 
and  that  by  the  misuse  complained  of,  the  books 
of  his  children  are  torn,  soiled,  carried  away,  lost 
and  misplaced,  their  copy-books  written  on  or 
thrown  to  the  floor,  their  slates  and  pens  broken,  etc.* 

An  injunction  will  not  lie  to  restrain  the  erec- 
tion of  a  school-house  or  its  use  as  a  school  near 
one's  dwelling-house,  on  the  ground  of  the  school 
being  a  nuisance,  even  if  the  property  is  thereby 
depreciated  in  value.4 

1  "  General  Statutes  of  Connecticut,  Rev.  of  1877),  title  ii. 
chap,  v.,  sec.  29. 

*  "  Rev.  Statutes  of  Maine."  chap,  xi.,  tit.  ii..  sec.  24. 

•  Spencer  ».  Joint  School  District.  15  Kan.,  259  ;  Schoflcld 
«.  Eiphth  School  District,  27  Conn.,  499. 

4  Harrisou  v.  Good,  11  L.  R.  (Eq  Cas.),  388. 


,«**«,£* 

SCHOOL    DISTRICT  MEETINGS.  6» 


CHAPTER  YH 

SCHOOL  DISTRICT  MEETINGS. 


WHERE  a  meeting  of  a  school  district  is  held 
for  a  special  purpose,  all  that  is  necessary  in  the 
form  of  the  notice  is  that  it  should  be  so  expressed 
as  that  the  inhabitants  of  the  district  may  fairly  un- 
derstand the  purpose  for  which  they  are  convened.1 

It  has  been  held  that  where  the  warning  of  a 
school  society  meeting  stated  the  object  of  the 
meeting  to  be  "  to  take  into  consideration  the  ex- 
pediency of  raising  money  for  the  use  of  schooling 
for  the  year  ensuing,"  such  a  warning  was  suf- 
ficient to  authorize  the  laying  of  a  tax  for  the 
purpose  specified.4 

The  meeting  should  be  opened  in  a  reasonable 
time  after  the  hour  specified  in  the  notice  ;  and 
what  is  reasonable  time  depends,  in  some  measure, 
upon  the  circumstances  of  each  particular  case  ; 
but  a  delay  of  one  hour  and  five  minutes  is  not, 
of  itself,  an  unreasonable  delay,  there  being  no  law 

1  School  District  v.  Blakeslee,  13  Conn.,  227  ;    Weeks    v. 
Batchelder,  41  Vt.,  317  ;  Moore  v.  Beattie,  33  Vt.,  219. 
•J  Bartlett  v.  Kinsley,  1/5  Conn.,  327. 


64  T.AW   OF   PUBLIC   SCHOOLS. 

necessarily  requiring  the  meeting  to  be  opened 
within  that  time.1  Of  course,  where  the  statute 
requires  the  meeting  to  be  opened  at  a  particular 
time,  it  must  be  followed.  But  an  irregularity  in 
this  respect  which  does  not  affect  the  action  of 
the  meeting,  nor  deprive  any  elector  of  his  voice 
in  the  deliberations  of  the  meeting,  would  not,  it 
is  believed,  render  the  acts  of  the  meeting  illegal. 

In  New  Jersey  it  was  held  that  a  special  meet- 
ing of  the  legal  voters  of  a  school  district  may 
vote  to  raise  money  for  school  purposes,  although 
such  appropriation  has  been  refused  at  the  annual 
meeting.4 

Where  it  appears  that  a  site  for  a  school-house 
has  been  chosen,  it  will  not  be  invalidated  because 
the  clerk  has  made  irregularities  or  omissions  in 
describing  the  site  selected.8  " 

Where  it  appears  from  the  record  of  a  school 
district  that  the  meeting  was  held  on  the  day  ap- 
pointed, the  presumption  of  law  is  that  it  was 
held  in  suitable  time  in  the  day,  and  in  pursuance 
of  the  warning ;  and  if  a  party  claims  it  to  have 
been  held  otherwise,  the  burden  of  proof  rests 
upon  him.4 

1  School  District  c.  Blakeslee,  13  Conn.,  227. 

»  State  t>.  Lewis,  35  N.  J.  L.,  377. 

3  Merritt  v.  Farm,  22  111.,  303. 

4  School  District  t>.  Blakeslee,  13  Conn.,  227. 


SCHOOL  DISTRICT  MEETINGS.  65 

The  intention  of  a  corporation  can  be  ascertained 
only  by  the  language  of  its  recorded  acts  ;  and 
neither  the  private  views  nor  the  public  declara- 
tions of  individual  members  of  such  corporation 
can,  for  this  purpose,  be  inquired  into.1 

Its  records  are  proper  and  legitimate  evidence  in 
its  behalf,  of  its  votes,  in  a  suit  to  which  such 
district  is  a  party.9 

Under  a  statute  which  requires  that  school  dis- 
trict meetings  shall  be  called  by  posting  notices 
thereof  "  on  the  district  school-house  and  one 
other  public  place  within  the  limits  of  said  dis- 
trict," notices  posted  "  one  at  the  school-house 
and  one  at  the  grist-mill,  both  in  said  district," 
comply  with  the  law  and  constitute  sufficient  no- 
tice.3 In  New  York  it  is  provided  by  statute 
that  the  proceedings  of  a  district  or  neighborhood 
shall  not  be  held  illegal  for  want  of  due  notice  to 
all  persons  qualified  to  vote  thereat,  where  the 
omission  to  give  such  notice  is  not  shown  to  have 
been  wilful  and  fraudulent.4 

1  Bartlutt  0.   Kinsley,   15  Conn.,  327  ;    School  District  v. 
Atherton,  12  Mete.  (Mass.),  105. 
8  School  District  v.  Blakeslee,  13  Conn.,  227. 
3  Fletcher  v.  Lincolnville,  20  Me.,  439. 
*  N.  Y.  Rev.  Stat.,  vol.  ii.,  chap.  xv.  tit.  vii.,  sec.  7,  p.  62. 


66  LAW   OF   PUBLIC   SCHOOLS. 


CHAPTER  VIII. 
EMPLOYMENT   OF   SCHOOL   TEACHERS. 

1.  PARTIES  TO  THE  CONTRACT. — 2.  A  CERTIFI- 
CATE PREREQUISITE. — 3.  CHARACTER  OF  THE  CON- 
TRACT.— 4.  CONDITIONS  OF  THE  CONTRACT. — 5. 
BREACH  OF  THE  CONTRACT. — 6.  REMEDIES. — 7.  DE- 
FENCES. 

1.  PARTIES  TO  THE  CONTRACT. 

THE  employment  of  public-school  teachers  is 
very  generally  regulated  "by  statute,  and  it  will  be 
found  that  in  all  the  States  the  authority  to  em- 
ploy teachers  is  conferred  upon  officers  variously 
styled  as  directors,  trustees,  or  committees.  It  is 
through  these  agencies  that  the  school  district  or 
school  township  acts,  and  when  the  officer  acts 
within  the  scope  of  his  authority  he  binds  the 
district. 

School  districts  are  quasi  corporations,  and  are 
capable  of  suing  and  being  sued,1  and  on  breach 

1  2  Kent's  Comm.  *274 ;  2  Bouvier's  Law  Diet.,  title, 
"  Quasi  Corporation  ;"  School  Commissioners  v.  Aiken,  5  Port. 
(Ala.),  169;  McLoud  «.  Selby,  10  Conn.,  390;  Trustees  of 
School  t>.Tatman,13  111.,  27  ;  State  t>.  Ilulin,  2  Oregon,  300  ; 
Code  of  Iowa,  1873,  sec.  1716  ;  Whitmore  t>.  Ilogan,  22  Me., 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     67 

of  a  contract  legally  made  with  the  district  or 
town,  through  its  proper  officer,  a  right  of  action 
accrues  as  against  such  district  or  town.1 

A  contract  made  by  such  school  officer  with  a  per- 
son to  teach  in  a  public  school  in  the  district  for  a 
period  extending  beyond  the  trustee's  term  of  office 
is  valid  and  binding  on  his  successors  in  office.5 

Any  person  possessing  the  proper  certificate  of 
qualification  required  by  law,  and  who  does  not  la- 
bor under  some  legal  disability,  is  competent  to 
enter  into  a  contract  to  teach.3 

564;  O'Neal  v.  School  Commissioners,  27  Md.,  227;  School 
District  v.  Thompson,  5  Miun.,  280  ;  Littleworth  v.  Davis,  50 
Miss.,  403  ;  Denniston  v.  School  District,  17  N.  H.,  492  ;  Hor- 
ton  <D.  Garrison  and  Hoffman,  23  Barb.  (N.  Y.),  176  ;  Whar- 
ton  V.  School  Directors,  42  Pa.  St.,  358;  District  No.  3  v. 
Macloon,  4  Wis.,  79;  Puterbaugh  ®.  Township  Board,  etc., 
53  Mo.,  472  ;  Grant  t>.  Fancher,  5  Cowen,  309. 

1  Puterbaugh  v.  Township  Board,  etc. ,  53  Mo. ,  472  ;  Cascade 
v.  Lewis,  43  Pa.  St.,  318. 

*  Gillisfl.  Space,  63  Barb.  (N.Y.),  177  ;  Silver  v.  Cummings, 
7  Wend.  (N.  Y.),  181  ;  Wilson  «.  East  Bridgeport  School  Dis- 
trict, 36  Conn.,  280  ;  Wait  v.  Ray,  67  N.Y.  (Court  of  Appeals), 
36.  But  where  the  contract  is  wholly  to  be  carried  out  in  the 
future,  so  as  to  divest  future  boards  of  the  power  to  select  such 
teachers  as  they  shall  desire,  it  is  invalid.  School  Directors  v. 
Hart,  4  Bradw.  R.,  224  ;  Stevenson  v.  School  Directors,  87  III., 
255. 

8  In  some  of  the  States,  trustees  or  directors  are  pro- 
hibited by  statute  from  employing  their  near  relatives,  and  such 


68  LAW   OF  PUBLIC  SCHOOLS. 

An  infant  possessing  the  requisite  qualifications 
may,  with  the  assent  of  his  parent  or  guardian, 
contract  to  teach  school.1 

Where  a  minor  with  his  parent's  consent  con- 
tracts for  himself,  or  where  he  is  compelled  to  go 
abroad  and  do  for  himself,  the  minor  is  entitled 
to  receive  his  earnings,  and  payment  to  him  is  a 
full  satisfaction.* 

It  has  been  held,  however,  that  emancipation  of 
a  minor  does  not  enlarge  his  capacity  to  contract, 
but  merely  entitles  the  minor  to  his  earnings.3 

contracts  arc  made  void.  TKus,  in  New  York  no  i>erson  who 
is  within  two  degrees  of  relationship  by  blood  or  marriage  to 
any  such  trustees  shall  be  so  employed  (as  teachers),  except  with 
the  approval  of  two  thirds  of  the  voters  of  such  district  present 
and  voting  upon  the  question  at  an  annual  or  special  meeting 
of  the  district.  N.  Y.  Rev.  Stat.,  vol.  ii.,  chap,  xv.,  tit  7, 
sec.  9,  p.  70. 

1  Monaghan  t>.  School  District  No.  1,  88  Wis.,  100  ;  1  Par- 
sons on  Contracts,  *  310,  and  notes  "  i,"  "  j,"  and"  k. " 

»  Farrell  v.  Farrell,  3  Iloust.  (Del.),  633  ;  Nightingale  t>. 
Withington,  15  Mass.,  272  ;  Jenney  «.  Alden,  12  Mass.,  375  ; 
Angell  v.  McLellan,  16  Mass.,  28  ;  Whiting  r.  Earle,  3  Pick. 
(Mass.),  201  ;  Nixon  t>.  Spencer,  16  la.,  214  ;  Wolcott  «. 
Rickey  et  al,  22  la.,  171  ;  Oalbraith  ».  Black,  4  S.  &  R.  (Pa.). 
207  ;  The  ^Etna,  1  Ware  (U.  8.),  *  462  ;  Stone  t>.  Pulsipher.  16 
Vt.,  42  ;  Conover  t>.  Cooper,  3  Barb.  (N.Y.),  115  ;  Godfrey  t>. 
Hays,  6  Ala.,  501  ;  Lord  «.  Poor,  23  Me.,  569  ;  Steele  t>. 
Thatcher,  1  Ware  (U.S.),  *91. 

*  1  Parsons  on  Contracts,  *  811  ;  Person  ».  Chase,  37  Vt., 
647  ;  Schoulcr  on  Domestic  Relations,  *561. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     69 

It  is  well  enough  to  bear  in  mind  that,  as  a 
general  rule,  an  infant  who  makes  a  definite  con- 
tract to  perform  services  may  put  an  end  to  it 
whenever  he  chooses.  In  such  a  case  the  infant 
may  recover  proportional  compensation  for  the  ser- 
vices performed,  subject  to  any  reasonable  offsets.1 
Although  no  suit  can  be  maintained  against  a 
minor  for  breach  of  contract  of  service,  yfet  dam- 
ages sustained  by  reason  of  such  breach  of  the  con- 
tract may  be  set  off  against  the  minor's  claim  for 
services. 

At  common  law  married  women  are  disabled 
from  making  such  contracts,2  but  in  many  of  the 
States  legislation  for  the  removal  of  this  disability 
has  been  adopted.3 

Where  one  member  of  a  board  of  directors  or 
trustees  contracts  with  the  other  member  or  mem- 
bers, such  a  contract  has  sometimes  been  held 
void  on  the  grounds  of  public  policy.4  Sometimes 

1  Schouler  on  Domestic  Relations,  *  561. 
8  1  Parsons  on  Contracts,  *  345. 

3  In  the  following-named  States  and  Territories  the  right  to 
make  contracts  and  receive  wages  is  given  to  married  women 
by  statute — viz.,  Colorado,  Connecticut,  Dakota  Territory,  Del- 
aware,   Illinois,    Iowa,    Kansas,    Maryland,    Massachusetts, 
Michigan,  Minnesota,  Mississippi,  Missouri,  Nebraska,  Nevada, 
New  Hampshire,  New  Jersey,  New  York,  Oregon,  Vermont, 
Wyoming  Territory,  and  Wisconsin. 

4  Pickett  v.  School  District,  25  Wis.,  551. 


70  LAW   OF   PUBLIC  SCHOOLS. 

the  school  office  has  been  held  to  be  vacated  there- 
by ;  the  duties  of  teacher  and  trustee  are  incom- 
patible. ' 

2.  A  CERTIFICATE  PREREQUISITE. 

Before  any  contract  to  teach  can  be  entered  into, 
and  as  a  prerequisite  thereto,  the  teacher  must 
have  and  produce  a  certificate  of  mental  and  moral 
qualifications,  signed  by  the  proper  examining  offi- 
cer.8 

Circumstances  cannot  supersede  the  necessity  of 
this  certificate,  nor  can  the  committee  waive  it  so 
as  to  bind  the  district.3 

In  Tennessee  the  common-school  commissioners 
are  indictable  for  employing  a  teacher  who  has  no 
examiner's  certificate.4 

In  Vermont,  however,  it  is  held  that  the  re- 
quirement of  the  law  is  satisfied  if  the  certificate 

1  Ferguson  0.  True  and  Wulker,  8  Bush  (Ky.),  255. 

*  Jen  ness  v.  School  District  No.  31, 12  Minn.,  448  ;  Robinson 
v.  The  State,  2  Coldw.  (Tenn.),  181  ;  Baker  v  School  District, 
12  Vt.,  192;  Goodiich  v.  Fairfax,  26  Vt.,  115;  Welch  «. 
Brown,  30  Vt.,  580  ;  Harrison  Township  c.  Conrud,  26  Ind., 
837  ;  Jackson  v.  Humpdcn,  20  Me.,  37  ;  Botkiu  v.  Osborue,  39 
111.,  609  ;  Casey  v.  Baldridge,  15  111.,  65  ;  Barr  v.  Deniston,  19 
N.  II.,  170 ;  Finch  v.  Cleveland,  10  Burb.  (N.Y).,  290. 

1  Baker  v.  School  District,  12  Vt.,  192  ;  Goodrich®.  Fairfax, 
26  Vt.,  115  ;  Welch  v.  Brown,  80  Vt.,  586. 

4  Robinson  v.  the  State,  2  Coldw.  (Tenn.),  181. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     71 

is  obtained  on  the  evening  of  the  first  day  of 
school.1  So,  if  it  appears  that  a  certificate  was 
made  out  at  the  proper  time,  by  the  proper  offi- 
cer, upon  satisfactory  evidence  of  qualifications, 
this  will  suffice,  although  by  accident  or  neglect  the 
certificate  was  not  put  into  the  teacher's  hands.* 

In  Vermont,  it  is  said,  the  certificate  need  not 
contain  any  statement  of  the  good  moral  character 
of  the  teacher,  although  a  good  moral  character  is 
essential,  and  must  be  inquired  into  by  the  exam- 
iner.3 

The  certificate  of  a  majority  of  the  superintend- 
ing committee  of  a  town,  produced  by  the  school- 
master to  the  agent;  employing  him,  is  a  valid  cer- 
tificate under  Maine  Eev.  Stat.,  ch.  17,  although 
that  majority  did  not  act  together  in  the  examina- 
tion.4 

If  the  teacher  has  obtained  a  certificate  without 
fraud,  or  use  of  improper  arts  on  his  part,  al- 
though the  certificate  was  issued  without  any  ex- 
amination having  been  made,  still,  it  is  said,  this 
complies  with  the  law  to  such  an  extent  that  the 
lack  of  examination  is  no  defence  to  an  action  for 
the  teacher's  salary.5 

1  Paul  «.  School  District,  28  Vt.,  575. 

9  Blanchard  v.  School  District.  29  Vt.,  433. 

3  Crosby  v.  School  District,  35  Vt.,  623. 

4  Stevens  t>.  Fassett,  27  Me.,  266. 

6  George  v.  School  District  No.  8,  20  Vt.,  495. 


72  LAW   OF  PUBLIC   SCHOOLS. 

* 

Any  contract  made  with  a  teacher  who  does  not 
possess  the  required  certificate  of  qualifications  is 
void,  and  the  teacher  can  draw  no  pay  under  it.1 
And  this  is  so,  even  though  the  superintending 
school  committee,  whose  duty  it  is  to  make  the  ex- 
aminations, neglects  or  wantonly  refuses  to1  examine 
the  teacher.2 

A  school  district  has  no  right  to  waive  this  re- 
quirement of  the  law,  and  consent  to  judgment. 
Any  person  interested  as  a  taxpayer  in  the  district 
may  enjoin  such  judgment.8 

The  county  superintendent  is  not  entitled  to  an 
injunction  to  restrain  a  person  from  teaching  a 
public  school,  or  the  officers  from  paying  for  such 
services  out  of  the  school  funds  of  the  district,  on 
the  ground  that  such  teacher  is  acting  without  a 
certificate  of  qualifications  in  violation  of  the  laws 
of  the.  State.  Such  a  proceeding  may  be  main- 
tained by  any  citizen  or  resident  of  the  district, 

1  Smith  v.  Curry,  16  111.,  147  ;  Casey  t>.  Baldridge,  15  III, 
65;  Botkin  t>.  Osborne,  89  III,  609;  Harrison  Township  «. 
Conrad,  26  Ind.,  337  ;  Jackson  t>.  Hampden,  20  Me.,  87  ;  Dore 
«.  Billings,  26  Me.,  56  ;  Barr«.  Deniston,  19  N.  II.,  170  ;  Baker 
e.  School  District,  12  Vt.,  192  ;  Goodrich  t>.  Fairfax,  26  Vt., 
115  ;  Welch  «.  Brown,  80  Vt.,  586. 

9  Jackson  t>.  Hampden,  20  Me.,  87. 

1  Barr  v.  Deniston,  19  N.  H.,  170. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     73 

but   not  by  the   county   superintendent,  merely  by 
virtue  of  his  office.1 

Under  a  statute  which  declares  that  the  certifi- 
cate which  the  school  commissioner  is  required  to 
grant  to  teachers  after  examination  shall  not  be 
valid  for  more  than  a  year  without  the  approval 
of  such  certificate  by  the  commissioner  indorsed 
thereon,  and  which  requires  every  teacher  to  ob- 
tain and  produce  such  certificate  before  employ- 
ment, the  spirit  of  the  law  was  complied  with,  al- 
though the  commissioner  did  not  approve  the  cer- 
tificate in  writing,  but  declared  the  teacher  com- 
petent, and  gave  his  sanction  to  the  previous  ar-  . 
rangement  of  the  school  in  the  presence  of  the 
trustees.2 

A  teacher's  certificate*  of  qualifications  obtained 
from  the  school  commissioner  is  prima  facie  evi- 
dence of  his  being  qualified  to  perform  the  duties 
of  a  teacher,  and  it  devolves  upon  the  school  di- 
rectors to  prove  incompetency  or  neglect  of  duty 
when  they  have  dismissed  him  for  either  of  these 
causes.3 

1  Perkins  v.  Wolf  et  al",  17  Iowa,  228  ;  Barr  v.  Deniston,  19 
N.  H  ,  170. 

2  Barnhart  v.  Bodenhammer,  31  Mo.,  319. 

3  Neville  v.  School  Directors,  36  111.,  71. 


LAW   OF   PUBLIC  SCHOOLS. 


3.  CHARACTER  OF  THE  CONTRACT. 

The  contract  is,  in  many  of  the  States,  required 
by  law  to  be  reduced  to  writing.  Where  this  is 
the  case,  questions  arise  as  to  the  ratification  of  a 
parol  contract,  and  its  effect. 

In  Kansas  it  is  said  that  one  teaching  in  a 
school  without  a  written  contract  is  entitled  to 
receive  the  reasonable  value  of  the  services  per- 
formed. ' 

In  Iowa,  where  a  teacher  had  made  a  parol  con- 
tract with  the  directors  of  a  school  district  to 
teach  nine  months,  and  had  taught  seven,  receiv- 
ing pay  therefor,  after  which  tie  was  discharged, 
it  was  held,  that  although  the  contract  did  not 
comply  with  the  statute  requiring  such  engage- 
ments to  be  in  writing,  nevertheless  the  accept- 
ance of  part -performance  was  a  ratification,  ren- 
dering the  district  liable  on  the  contract.9  AVhere 
the  law  requires  the  contract  to  be  in  writing,  and 
there  is  a  written  contract  between  the  teacher 
and  the  district,  it  will  be  conclusively  presumed, 
in  the  absence  of  fraud,  accident,  or  mistake,  that 

1  Jones  v.  School  District,  8  Kan.,  302. 

*  Cook  T.  Independent  District  of  North  McGregor,  40 
Iowa,  444 ;  Athearn  r.  The  Independent  School  District  of 
Millersburg,  33  Town,  105. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     75 

it   contains  the   entire  agreement  of   the  parties  as 
to  the  subject-matter  covered  by  it.1 

4.  CONDITIONS  OF  THE  CONTRACT. 

The  contract  of  the  teacher  is  to  teach  his  pupils 
what  he  has  undertaken,  and  to  have  a  special  care  of 
their  morals.2 

The  contract  is  for  the  personal  services  of  the 
teacher,  and  such  teacher  cannot  substitute  a  proxy, 
however  competent.  If  a  teacher  leaves  his  place 
and  fails  to  resume  it,  and  when  requested  to  return 
insists  that  it  is  sufficient  that  he  has  left  a  compe- 
tent substitute,  this  is  cause  enough  for  dismissal.3 

The  law  docs  not  require  the  highest  order  of  tal- 
ents or  qualifications  in  a  teacher.  It  only  requires 
average  qualifications  and  ability,  and  the  usual  ap- 
plication to  the  discharge  of  his  duties  to  fulfil  his 
contract.4 

The  contract  is  necessarily  subject  to  any  con- 
ditions imposed  by  the  law  from  which  the  power  to 
contract  is  derived.  Thus  where  a  statute  empowers 
the  board  of  directors  to  employ  teachers  and  remove 

1  Mann  v.  The  Independent  School  District,  etc..  Supreme 
Court  of    Iowa,  October,  1879.     Reported  in   Northwestern 
Reporter,  vol.  ii.  (N.  S.),  No.  11,  p.  1005. 

2  1  Starkie,  421. 

3  School  Directors,  etc.,  v.  Hudson,  88  111.,  563. 

4  Neville  t>.  School  Directors,  36  111.,  71. 


76  LAW   OF   PUBLIC   SCHOOLS. 

them  at  pleasure,  the  statute  enters  as  part  of  any 
contract  made  under  it,  and  the  teacher  employed  by 
contract  under  it  may  be  discharged,  notwithstand- 
ing the  terms  of  his  employment.1 

It  sometimes  becomes  a  question  whether  the  stat- 
ute under  which  the  contract  is  made  gives  the  right 
to  dismiss  a  teacher  at  pleasure.  It  does  not,  unless 
clearly  so  expressed  in  the  statute.  Thus  Wagn. 
(Mo.)  Stat.  1243,  sec.  7,  making  it  "  the  duty  of 
the  directors  to  manage  and  control  its  local  interests 
and  affairs,"  and  giving  them  power  to  hire  legally 
qualified  teachers,  gives  them  no  authority  to  dismiss 
a  teacher  unless  for  good  and  sufficient  cause  shown.1 

In  case  of  their  wantonly  obstructing  him  in  the 
discharge  of  his  duties,  or  dispossessing  him  of  the 
school-house,  they  would  be  individually  liable  in 
damages  for  tort.' 

A  clause  in  a  contract  between  a  school  district 
board  and  a  teacher,  reserving  the  right  to  discharge 
the  teacher  whenever  he  fails  to  give  satisfaction,  is 
valid,  under  a  statute  which  provides  that  the  county 
superintendent  may  dismiss  "  for  incornpctency, 
cruelty,  or  immorality."4 

1  Jones  i>.  Nebraska  City.  1  Ncl>.,  170  ;  Wood  e.  Inhabitants 
of  Medfielil,  123  Mass.,  54.1 ;  Knowles  t.  Boston,  12  Gray 
(Mass.).  339. 

9  McCutchen  v.  Windsor,  55  Mo.,  149.  •  Id. 

4  School  District  t>.  Colvin,  10  Kan..  2*3. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     77 

Where  the  contract  between  a  teacher  and  the 
school  district  contained  a  stipulation  that  she  would 
leave  if  the  school  was  not  satisfactory,  it  was  held 
that  dissatisfaction  with  her  school,  and  not  personal 
unpopularity  in  the  district,  would  be  a  reason  for 
dismissal  under  this  provision.1 

When  a  teacher  has  been  irregularly  dismissed,  his 
subsequent  continuance  in  the  school,  with  the  assent 
of  a  majority  of  the  trustees,  is  a  waiver  of  such  dis- 
missal, and  a  satisfaction  of  the  original  employment.* 

Unless  such  power  is  conferred  by  statute,  the  trus- 
tees of  a  school  district  have  no  right  to  dismiss  a 
teacher  holding  the  proper  certificate,  without  cause, 
and  against  his  consent,  before  the  expiration  of  his 
contract.9 

Where  the  teacher  of  a  public  school  contracted  to 
"  faithfully  and  impartially  govern  and  instruct  the 
children,  ...  to  strictly  conform  to  the  rules 
established  by  the  board  of  directors,  ...  to 
perform  all  the  duties  required  of  her  by  part  8,  sec. 
41,  of  the  school  laws,"  and  it  was  provided  in  the 
contract  that  if  she  should  be  dismissed  by  the  sub- 
director  for  a  violation  of  any  of  the  stipulations 
therein,  that  she  would  not  be  entitled  to  compensa- 
tion after  such  dismissal,  it  was  held  that  the  sub- 
director  had  a  right  to  dismiss  her  for  a  failure  to 

1  Eicbardson  v.  School  District,  38  Vt.,  603. 

8  Finch  v.  Cleveland,  10  Barb.  (N.  Y.),  290.  3  Id. 


78  LAW   OF  PUBLIC  SCHOOLS. 

control  the  school,  even  if  she  was  not  unfaithful  in 
the  discharge  of  her  duties.1 

Where  the  word  "  month"  in  school  contracts  is 
not  defined  by  statute,  careful  officers  and  teachers 
avoid  any  question  by  making  their  contracts  for  a 
certain  number  of  weeks. 

The  word  month  has  various  meanings,  there  be- 
ing calendar  months,  solar  months,  and  sevenil 
kinds  of  lunar  months. 

In  law  the  word  "  month"  means  either  a  calen- 
dar or  lunar  month.  The  civil  or  calendar  months 
are  the  months  as  adjusted  in  the  common  or  Grego- 
rian calendar,  and  known  as  January,  February,  etc. 
A  lunar  month,  the  period  of  one  synodical  revolu- 
tion of  the  moon,  is,  in  mean  length,  29  days,  12 
hours,  44  minutes,  and  2.87  seconds,  but  in  popular 
usage  four  weeks  are  called  a  lunar  month. 

Under  the  old  English  common  law  the  word 
"  month,"  whenever  it  occurred,  was  construed  to 
mean  a  lunar  month  of  four  weeks,  except  in  mer- 
cantile contracts,  in  which  it  was  construed  to  mean 
a  calendar  month. 

In  some  of  the  States  it  is  provided  by  statute 
that  the  word  "  month"  used  in  contracts,  instru- 
ments, and  statutes  shall  be  taken  to  mean  calendar 
months. 

The  tendency  of  the  courts  of  this  country  is  to 
1  Eastman  t>.  Rapids,  21  Iowa,  590. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     79 

give  the  word  the  meaning  of  calendar  month,1  and 
in  contracts  such  as  that  of  a  teacher  it  is  generally 
so  held,  unless  there  is  some  statute  to  the  contrary. 
In  New  York  it  is  provided  by  Rev.  Stat.,  vol.  ii., 
chap,  xix.,  tit.  1,  sec.  4,  p.  799,  that  where  the  word 
'*  month"  occurs  in  any  statute,  act,  deed,  written 
or  verbal  contract,  or  private  instrument  whatever,  it 
shall  be  held  to  mean  a  calendar  month,  unless  other- 
wise expressed. 

The  school  month  is  defined  by  statute  in  many  of 
the  States. 

In  Mississippi 9  and  Wisconsin 3  a  school  month  is 
twenty  days. 

In  Maine,  in  the  absence  of  an  agreement  to  the 
contrary,  a  school  month  is  four  weeks,  of  five  and  a 
half  days  each.4 

In  Arizona,5  Arkansas,6  California,1  Iowa,8  Kan- 

1  Sheets  v.  Selden,  2  Wallace,  177.  And  see  Bishop  on 
Contracts,  Sec. ,  748,  and  cases  cited  in  note. 

5  Rev.  Code  of  Mississippi,  chap,  xxxix.,  art.  viii.,  sec. 
2022. 

3  Rev.  Statutes  of  Wisconsin  (1878),  chap,  xxvii.,  sec.  459. 

4  Rev.  Statutes  of  Maine,  chap,  xi.,  tit.  ii.,  sec.  54. 

5  Compiled  Laws  of  Arizona  (1877),  chap,  xxiii.,  p.  233,  sec. 
32. 

6  Arkansas  Digest,  chap.  120,  sec.  5429. 

1  Hittell's  Codes  and  Statutes  of  California,  vol.  i.,  Political 
Code,  art.  xii.,  sec.  1697. 
8  Code  of  1873,  sec.  1757. 


80  LAW   OF   PUBLIC  SCHOOLS, 

sas,'  Louisiana,4  Michigan,*  Minnesota/  Missouri,4 
Nevada,*  New  Jersey,1  and  Ohio,8  the  school  month 
consists  of  four  weeks,  of  five  days  each. 

In  Kentucky,9  Illinois,1"  and  Pennsylvania,  the 
school  month  is  twenty-two  days. 

No  deduction  from  the  teacher's  wages  can  law- 
fully be  made  on  account  of  holidays,  such  as  Christ- 
mas, January  1st,  July  4th,  and  the  fasts  and 
thanksgivings  appointed  by  the  President  of  the 
United  States  and  the  Governor  of  the  State. 

A  contract  to  teach  school  does  not  imply  that  the 
teacher  is  to  sweep  out,  make  fires,  or  do  any  janito- 
rial work,  nor  would  the  fact  that  his  predecessor 
had  done  such  work  without  extra  compensation 
make  any  difference.  It  must  be  part  of  the  con- 

1  Compiled  Laws  of  Kansas,  chap,  xcii.,  art  v.,  sec.  2. 
1  Voorhies'  Rev.  Statutes  of  Louisiana,  see.  1278,  p.  332. 

*  Compiled  Laws  of  Michigan,  vol.  i.  chap,  cxxxvi.,  sec. 
24,  p.  1194. 

4  Statutes  of  Minnesota,  1878,  chap,  xxxvi.,  sec.  31. 

*  Myer's  Supplement  to  Wagner's    Statutes  of    Missouri, 
chap,  cxxiii.,  art.  i.,  sec.  90,  p.  426. 

•  Compiled   Laws  of  Nevuda,  vol.  ii.,  chap,  cxii.,  sec.  50, 
p.  207. 

1  Rev.  Statutes  of  New  Jersey,  p.  1077,  sec.  44. 

8  Rev.  Statutes  of  Ohio,  vol.  i..  tit.  iii.,  chap,  ix.,  sec.  401fi. 

•  General  Statutes  of    Kentucky  (1879),  chap,  xviii.,  art. 
xl.,  sec.  4. 

10  Statutes  of  Illinois,  chap,  cxxii.,  sec.  54.  ' 


EMPLOYMENT  OF  SCHOOL  TEACHERS.  81 

tract,  or  the  teacher  cannot  be  required  to  do  such 
work. 

5.  BREACH  OF  THE  CONTRACT. 

If  the  contract  is  broken  in  any  manner  by  the 
teacher,  he  of  course  forfeits  his  right  to  any  further 
compensation,  and  renders  himself  liable  to  dis- 
missal. 

If  a  teacher  in  a  public  school,  although  he  has 
been  employed  for  a  definite  time,  proves  to  be  in- 
competent and  unable  to  teach  the  branches  of  in- 
struction he  has  been  employed  to  teach,  either  from 
a  lack  of  learning  or  from  an  utter  want  of  capacity 
to  impart  his  learning  to  others,  or  if  in  any  other 
respect  he  fails  to  perform  the  obligations  resting 
upon  him  as  a  teacher,  whether  arising  from  the  ex- 
press terms  of  his  contract  or  by  necessary  implica- 
tion, he  has  broken  the  agreement  on  his  part,  and 
the  trustees  are  clearly  authorized  to  dismiss  him.1 

As  has  been  stated,  in  treating  of  the  conditions  of 
the  contract,  the  law  does  not  insist  upon  the  highest 
talents.  But  it  does  require  the  teacher  to  bring  to 
his  work  at  least  average  abilities,  and  the  usual  in- 
dustry and  application  to  the  discharge  of  his  duties.5 
If  he  fails  in  this  respect  his  contract  is  broken. 

1  Crawfordsville  ».  Hays,  42  Ind.,  200  ;  Bays  v.  The  State, 
6  Neb..  167. 
*  Neville  ».  School  Directors,  36  111.,  71. 


82  LAW   OF   PUBLIC  SCHOOLS. 

The  school  district  on  its  part  contracts  to  pay,  at 
the  times  fixed  in  the  contract,  such  sums  as  the 
teacher  will  be  entitled  to  as  salary.  A  failure  on 
the  part  of  the  district  to  make  such  payment  gives 
the  teacher  a  right  of  action.  The  teacher  is 
peculiarly  entitled  to  be  paid  for  his  important  and 
arduous  services  by  those  who  employ  him.1 

If  a  teacher  is  employed  for  a  definite  time,  and 
during  the  period  of  his  employment  the  district 
officers  close  the  schools  on  account  of  the  prevalence 
of  small-pox  in  the  city,  and  keep  them  closed  for 
several  months  on  that  account,  and  the  teacher  con- 
tinue ready  to  perform  his  contract,  he  is  entitled  to 
full  wages  during  such  period.  The  act  of  God  is 
not  an  excuse  for  non-observance  of  a  contract  un- 
less it  renders  performance  impossible.  If  it  merely 
makes  it  difficult  and  inexpedient,  it  is  not  sufficient. 
Although  under  such  circumstances  it  is  eminently 
prudent  to  dismiss  school,  yet  this  affords  no  reason 
why  the  misfortune  of  the  district  should  be  visited 
the  teacher.* 


1  1  Bing.,  357  ;  8  J.  B.  Moore,  368. 

*  Dewey  v.  Union  School  District,  Supreme  Court  of  Michi- 
gan (April  30,  1880).  Northwestern  Reporter,  vol.  v.,  No.  5,  p. 
646. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     83 


6.  REMEDIES. 

The  remedy  of  the  board  for  failure  of  the  teacher 
is  dismissal.1 

The  teacher  has  one  of  two  remedies — action  on  the 
contract,*  or  a  writ  of  mandamus.3  Mandamus,  and 
not  an  action  for  money  had  and  received,  is  the 
proper  remedy  to  compel  a  clerk  of  the  school  dis- 
trict to  pay  over  money  in  his  hands  applicable  to  a 
warrant  issued  in  favor  of  a  teacher  for  salary.  The 
funds  are  the  funds  of  the  district  until  he  parts 
with  the  custody  of  them.4 

A  teacher  is  entitled  to  a  writ  of  mandamus  to 
compel  the  trustees  to  pay  arrears  of  salary  due  him.6 

He  has  his  option  to  bring  suit  to  recover  the 
money,  or  proceedings  for  a  writ  of  mandamus  to 
compel  its  payment.  And  if  an  order  has  been 
issued  to  him,  and  it  remains  unpaid,  he  may  still 
have  his  choice  of  remedies.  The  creditor  of  a  cor- 

1  Crawfordsville  ®.  Hays,  42  Ind.,  200. 

8  Puterbaugb  v.  Township  Board,  etc.,  53  Mo.,  472  ;  Cascade 
v.  Lewis,  43  Pa.  St.,  318  ;  Rolfe  v.  Cooper,  20  Me.,  154. 

8  Howard  v.  Bainford,3  Oreg.,  565  ;  Apgar  v.  Trustees,  34 
N.  J.  L.,  308,  8.C.,  5  Vroora,  308  ;  Cross  v.  District  Township 
of  Dayton,  14  Iowa,  28  ;  High's  Ex.  Legal  Rem.,  sec.  351. 

4  Howard  v.  Bamford,  3  Oreg.,  565. 

5  Apgar  v.  Trustees,  34  N.  J.  L.  J.  R,  308,  or  B.C.  5  Vroorn, 
308. 


84  LAW   OF   PUBLIC  SCHOOLS. 

poration  is  not  restricted  to  mandamus  as  his  sole 
remedy.1 

Where  the  school  law  allows  the  local  directors  to 
employ  a  teacher,  the  latter  may  sue  the  township 
board  of  education  for  breach  of  the  contract.* 

When  the  school  trustees  take  away  a  teacher's 
pupils  from  her  school-room,  although  she  had  a 
contract  with  them  and  was  ready  and  willing  to 
teach  the  school,-  they  are  nevertheless  not  individ- 
ually liable  to  her.3 

But  where  the  teacher  is  wrongfully  dismissed  on 
charge  of  incompetency  or  any  similar  charge,  he  is 
entitled  to  recover  from  the  district  his  wages  for  the 
balance  of  the  term  contracted  for.4 

Where  the  teacher  has  performed  services  without 
any  contract,  or  without  a  proper  contract,  he  is 
nevertheless  entitled  to  recover  the  reasonable  value 
of  his  services.* 

It  has  been  held  that  the  declaration  in  an  action 
by  the  teacher  for  salary  must  contain  an  averment 
that  a  certificate  of  qualification  was  exhibited  to  the 
directors  prior  to  the  commencement  of  school.* 

1  Cross  v.  The  District  Township  of  Dayton,  14  Towa.  2fl. 

*  Puterbaugh  t>.  Township  Board,  etc.,  53  Mo.,  472. 

*  Morrison  v.  McFarland,  51  Ind.,  20fi. 

4  Ewing  «.  School  District,  etc.,  2  Bradwell  (111.),  458. 
'  Offut  r  Bourgeois,  16  La.  Ann.,  163  ;  Jones  c.  School  Dis- 
trict, 8  Kan.,  862. 

*  Smith  ».  Curry,  16  111.,  147  ;   Botkin  »    Oslx>rue.  39  II!  . 


EMPLOYMENT   OF   SCHOOL    TEACHERS.  85 

Mandamus  will  lie  to  compel  the  officers  of  a  school 
district  to  reinstate  a  teacher  whom  they  have  re- 
moved without  authority.1 

7.  DEFENCES. 

The  fact  that  the  teacher  did  not  possess  nor  ex- 
hibit the  certificate  of  qualification  required  by  law 
will,  in  most  of  the  States,  defeat  any  recovery  by  the 
teacher.2  This  requirement  is  always  enforced  with 
great  strictness,  because  it  is  the  best  safeguard  the 
public  has  against  the  impositions  of'  incompetent 
teachers.  It  is  true  that  incompetent  teachers  may 
be  dismissed,  but  always  at  the  expense  of  confusion 
and  delay,  and  the  school  interests  are  too  important 
to  be  thus  trifled  with. 

In  an  action  by  a  teacher  to  recover  for  his  services, 
proof  of  his  employment  by  the  agent,  and  that  he 
rendered  the  services,  makes  a  prima  facie  case,  and 
if  the  town  would  avail  itself  of  the  want  of  a  cer- 

609  ;  Stevenson  v.  School  Directors,  87  111.,  255.  But  see 
contra,  Doyan  v.  School  District,  35  Vt.,  520. 

1  Oilman  v.  Bassett,  33  Conn.,  298. 

»  Botkin  v.  Osborne,  39  111.,  609  ;  Smith  v.  Curry,  16  111., 
147;  Casey  v.  Baldridge,  15  111.,  65;  Harrison  Township  v. 
Conrad,  26  Ind.,  337  ;  Dore  v.  Billings,  26  Me.,  56  ;  Baker  v. 
School  District,  12  Vt.,  192  ;  Goodrich  ®.  Fairfax,  26  Vt.,  115  ; 
Welch  v.  Brown,  30  Vt.,  586  ;  Stevenson  v.  School  Directors, 
87111.,  255. 


86  LAW   OF   PUBLIC   SCHOOLS. 

tificate  it  must  show  the  fact,  as  it  will  be  presumed 
that  the  agent  did  his  duty.1 

Although  a  teacher  of  a  public  school  may  not  be 
entitled  to  recover  her  wages  by  reason  of  having 
neglected  to  obtain  the  certificate  required  by  law, 
yet  the  town  alone  is  entitled  to  make  that  objection  ; 
and  if  money  has  been  paid  by  the  town  to  the  school 
agent,  to  be  by  him  paid  to  the  teacher,  he  will 
hold  it  to  her  use,  and  cannot  object  to  the  want  of  a 
certificate.* 

But  whether  money  placed  in  his  hands  by  the 
town  was  placed  there  absolutely  for  the  use  of  the 
school  teacher  is  a  question  of  fact  for  the  jury.3 

Payment  of  the  teacher's  wages  by  the  town  to  the 
committee  does  not  discharge  the  town's  liability  to 
the  teacher.4 

Incompetency,  incapacity,  or  failure  to  perform 
any  of  the  obligations  resting  upon  him  as  a  teacher, 
will  authorize  the  dismissal  of  a  public  teacher,  and 
defeat  any  recovery  for  salary  after  such  dismissal.* 

As  previously  stated,  the  production  of  a  teacher's 
certificate  casts  the  burden  upon  the  school  directors 

1  Rolfe  c.  Cooper,  20  Me.,  154,  but  contra,  Stevenson  ». 
School  Directors,  87  111.,  255. 

»  Dore  «.  Billiugs,  26  Me.,  56.  •  Id. 

4  C'lark  v.  Great  Burrington,  11  Pick.  (Mass.),  260. 

*  Craw  fords  ville  c.  Hays,  42  Ind.,  200  ;  Bays  r.  The  State.  6 
Neb.,  167. 


EMPLOYMENT  OF  SCHOOL  TEACHERS.     87 

to  prove  incompetency  or  neglect  of  duty,  when  they 
rely  upon  either  of  these  causes  as  grounds  for  dis- 
missal. The  certificate  is prima  facie  evidence  of  the 
teacher's  qualification.1  Incompetency  of  a  teacher 
is  a  question  of  fact  to  be  found  from  the  evidence.4 
Where  in  an  action  for  wages  it  was  pleaded,  among 
other  defences,  that  the  plaintiff  was  incompetent  to 
manage  the  school,  that  she  was  unreasonable  in  her 

requirements  of  the  pupils  in  the  school,  and  was 

* 
uneven  in  her  treatment  of  them,  and  partial  and 

abusive  in  her  treatment  of  certain  ones  in  her 
school,  and  that  she  failed  in  all  respects  as  a  teacher 
of  said  school,  it  was  held  that  evidence  of  particular 
instances  of  mismanagement  in  her  government  of 
the  school  was  admissible.3 

It  has  been  held  in  an  action  to  recover  salary  that 
evidence  that  a  majority  of  the  voters  in  the  district 
were  dissatisfied  with  the  plaintiff,  and  that  the 
plaintiff  and  the  prudential  committee  who  employed 
plaintiff  knew  this  at  the  time  the  plaintiff  was  em- 
ployed, is  inadmissible.4 

Where  an  order  on  the  treasurer  was  left  at  a 
teacher's  boarding-house  in  full  for  her  services, 
which  order  she  took,  but  returned  in  two  or  three 

1  Neville*.  School  Directors,  3$  III..  71. 

5  Ewing  v.  School  District,  etc.,  2  Bradw.  (III.),  458. 

3  Holdun  v.  School  District,  38  Vt.,  529. 

4  Nason  v.  School  District  No.  14,  20  Vt.,  487. 


88  LXW   OF   PUBLIC  SCHOOLS. 

hours,  saying  that  she  did  not  accept  it,  it  was  held 
that  she  lost  none  of  her  rights  thereby.1 

The  fact  that  a  teacher  who  had  been  dismissed 
carried  off  the  school  register,  but  returned  it  to  the 
school  district  clerk  before  bringing  suit  for  wages, 
will  not  defeat  a  recovery  for  wages." 

A  teacher  cannot  lawfully  be  paid  for  his  services 
until  he  has  made  a  report  to  the  superintending 
committee,  when  required  by  law.3 

It  is  no  defence  to  a  teacher's  suit  to  recover  sal- 
ary that  the  certificate  was  given  to  the  teacher 
without  any  actual  examination,  when  the  certi6cate 
was  obtained  by  him  without  fraud  or  the  use  of  im- 
proper arts  on  his  part.4 

1  Richardson  v.  School  District,  38  Vt.,  603. 

»  Wells  t.  School  District.  41  Vt,,  353. 

»  Moultonboroiigb  v.  Tuttle,  26  N.  H.  (6  Fost).,  470  ;  Jewell 
t>.  Abiugton,  2  Allen  (Mass.),  592.  But  contra,  Crosby  v.  School 
District,  35  Vt.,  623. 

4  George  v.  School  District  No.  8.  20  Vt.,  495. 


SCHOOL   REGULATIONS.  89 


CHAPTER   IX. 
SCHOOL  REGULATIONS. 

1.  BY  WHOM  MADE. — 2.  BY  WHOM  ENFORCED. — 
3.  REGULATIONS  AS  TO  ADMISSION. — 4.  REGULA- 
TIONS AS  TO  ATTENDANCE. — 5.  REGULATIONS  AS 
TO  THE  USE  OF  THE  BlBLE,  ETC. — 6.  REGULATIONS 
AS  TO  STUDIES. — 7.  REGULATIONS  AS  TO  CONDUCT, 
ETC. — 8.  GENERAL  PRINCIPLE. 


1.    BY   WHOM   MADE. 

IN  many  of  the  States  the  statutes  creating  the 
boards  of  directors,  trustees,  or  committees,  expressly 
confer  upon  them  the  authority  to  make  all  needful 
rules  for  the  regulation  of  the  schools  under  their 
care  and  control.1  And  the  right  to  do  so  is  un- 
doubtedly to  be  implied  where  the  statute  gives  the 
board  the  control  and  custody  of  the  schools.* 

1  Burdick  v.  Babcock,  31  Iowa,  562  ;  Iowa  Code  of  1873,  sec. 
1734  ;  Sewell  «.  Board  of  Education,  29  Ohio  St.,  89  ;  Morrow 
«.  Wood,  35  Wis.,59;    Donahoo  t>.   Richards,   38  Me.,  376; 
Donahoe,  prochein  ami,  v.  Richards  et  al.,  38  Me.,  379. 

2  Board  of  Education  of  Cincinnati  v.  Minor,  23  Ohio  St., 
211  ;  Ferriter  et  al.  v.  Tyler  etal.,  48  Vt.,  444  ;  Spear  v.  Cum- 
mings,  23  Pick.,  224  ;  The  People  «.  Easton,  13  Abb.  (N.Y.), 
Pr.  N.  8.,  159. 


90  LAW   OF   PUBLIC  SCHOOLS. 

While  the  principal  or  teacher  of  a  public  school  is 
subordinate  to  the  school  board,  or  board  of  educa- 
tion of  his  city  or  district,  and  must  enforce  regula- 
tions adopted  by  it  for  the  government  of  the  school, 
and  execute  its  lawful  orders  in  that  behalf,  yet,  in 
matters  concerning  which  the  board  has  remained 
silent,  he  has  authority,  as  in  loco  parentis,  to  enforce 
obedience  to  his  lawful  commands,  subordination, 
civil  deportment,  respect  for  the  rights  of  other 
pupils,  and  all  obligations  inherent  in  every  school 
system,  and  constituting  the  common  law  of  the 
school,  which  every  pupil  is  presumed  to  know.  In 
a  proper  case,  and  when  not  deprived  of  the  power  by 
the  affirmative  action  of  the  board,  such  teacher  has 
the  inherent  authority  to  suspend  a  pupil  from  the 
school ;  though  such  suspension,  with  the  reasons 
therefor,  should  be  promptly  reported  to  the  board. ' 

2.    BY   WHOM   ENFORCED. 

Since  the  regulations  are  made  for  the  government 
of  the  school,  and  the  school  is  under  the  immediate 
control  and  supervision  of  the  teacher,  the  execution 
of  the  rules  and  orders  of  the  directors  necessarily 
devolves  upon  the  teacher,  and  in  the  execution  of 

1  State  ».  Burton,  43  AVis.,  150  ;  Guernsey  t>.  Pitkin,  32  Vt., 
224 ;  Lander  t>.  Scaver,  32  Vt.,  114 ;  Ward  v.  Flood,  48  Cal. 
30. 


SCHOOL   REGULATIONS.  91 

proper  rules  he  is  not  liable  for  any  damages  that 
ensue.1 

3.  REGULATIONS  AS  TO  ADMISSION. 

Questions  sometimes  arise  in  respect  to  the 
authority  of  teachers  and  directors  to  refuse  admis- 
sion to  the  free  public  schools  under  certain  circum- 
stances. 

A  principal  of  a  public  graded  school  may  refuse  a 
child  admission  as  a  pupil,  provided  such  child  has 
not  education  sufficient  to  enter  the  lowest  grade  of 
such  school.9 

Persons  residing  out  of  the  State  cannot  send  their 
minor  children  into  it,  and  by  any  method  give  them 
a  domicile  in  the  State  which  shall  entitle  them  to 
acquire  an  education  in  the  public  schools.3 

Nor  can  parents  entitle  their  children  to  the  bene- 
fits of  the  common  schools  of  an  adjoining  district 
by  binding  the  children  out  as  apprentices  in  such 
district  for  the  sole  purpose  of  sending  them  to 
school  there.  They  would  be  trespassers  and  liable 
in  damages  to  the  district.4 

1  Sewell  v.  Board  of  Education,  29  Ohio  St. ,  89  ;  Guernsey 
v.  Pitkin,  32  Vt,  224  ;  State  «.  Burton,  45  Wis.,  150. 

2  Ward  v.  Flood,  48  Cal.,  36  ;  Trustees,  etc.,  v.  The  People 
exrel,  etc.,  87  111.,  303. 

3  Wheeler  v.  Burrow,  18  Ind..  14. 

4  School  District  v.  Bragdon,  23  N.  H.  (3  Fost.),  507. 


92  LAW   OF   PUBLIC  SCHOOLS. 

Neither  the  teacher  nor  school  board  has  authority 
to  make  any  discrimination  between  children  of  dif- 
ferent races.  Persons  of  African  descent  cannot  law- 
fully be  denied  admission  to  the  common  schools, 
and  in  most  of  the  States  they  cannot  be  compelled 
to  attend  separate  schools.1 

1  Dove  v.  Independent  School  District,  etc.,  41  Iowa,  689  ; 
Smith  v.  Directors,  etc.,  40  Iowa,  518  ;  Clark  t.  Board  of  Di- 
rectors, etc.,  24  Iowa,  200  ;  Chase  v.  Stephenson,  71  111.,  383  ; 
People?.  Board  of  Education,  18  Mich.,  400;  State  v.  South- 
meyer.  7Nev.,  342  ;  Stater.  Cincinnati,  19 Ohio,  178  ;  Stewart 
t>.  Southard,  17  Ohio,  402.  See  also,  Civil  Rights  Bills.  Hev. 
Statutes  of  United  States,  2d  ed.,  title  xxiv.,  and  sec.  5507, 
chap,  vii.,  title  Ixx.  ;  Slaughter  House  Cases,  1  Woods,  21  ; 
Slaughter  House  Cases,  10  Wallace,  36  ;  Coger  v.  Northwestern 
Packet  Co.,  37  Iowa,  145.  For  cases  holding  that  to  require 
colored  children  to  attend  separate  schools  equally  ns  good,  is 
not  an  unjust  discrimination  and  not  unlawful,  see  Ward  t>. 
Flood,  48  Cal.,  36  ;  Cory  v.  Carter,  48  Ind.,  827  ;  People  t>. 
Easton,  13  Ahb.  (N.Y.),  Pr.  N.  S.,  159  ;  State  t>.  McCunn.  21 
Ohio  St.,  198.  and  Dallas  v.  Fosdick,  40  How.  Pr..  249.  The 
following  extract  from  the  opinion  in  the  case  of  Clark  v.  Board 
of  Directors,  etc.,  24  Iowa,  206,  will  amply  repay  n  perusal  : 

"  That  the  board  of  directors  is  clothed  with  certain  discre- 
tionary powers  as  to  the  establishment,  maintenance,  and  man- 
agement of  schools  within  its  district  cannot  be  denied.  Doubt- 
less the  board  may,  in  its  discretion,  flx  the  boundaries  within 
which  children  must  reside,  in  order  to  be  entitled  to  admission 
to  a  certain  school  ;  or  may  fix  the  grade  of  each  school,  and 
require  certain  qualifications,  or  proficiency  in  studies,  or  tlie 
like,  before  any  pupil  shall  be  entitled  to  admission  therein. 


SCHOOL   REGULATIONS.  93 

Mandamus  will  lie  to  compel  the  admission  of  a 
child  so  excluded,  and,  although  the  proceedings  are 

"  But  this  discretion  is  limited  by  the  line  which  fixes  the 
equality  of  right  in  all  youths  between  the  ages  of  live  and 
twenty-one  years.  .  .  .  It  is  not  competent  for  the  board 
of  directors  to  require  the  children  of  Irish  parents  to  attend 
one  school  and  the  children  of  German  parents  another  ;  the 
children  of  Catholic  parents  to  attend  one  school  and  the  chil- 
dren of  Protestant  parents  another.  And  if  it  should  so  hap- 
pen that  there  be  one  or  more  poorly -clad  or  ragged  children  in 
the  district,  and  public  sentiment  was  opposed  to  the  inter- 
mingling of  such  with  the  well-dressed  youths  of  the  district  in 
the  same  school,  it  would  not  be  competent  for  the  board  of 
directors,  in  their  discretion,  to  pander  to  such  false  public 
sentiment,  and  require  the  poorly-clothed  children  to  attend  a 
separate  school. 

"  The  term  '  colored  race  '  is  but  another  designation,  and  in 
this  country  but  a  synonym  for  African.  Now  it  is  very  clear 
that  if  the  board  of  directors  are  clothed  with  a  discretion  to 
exclude  African  children  from  our  common  schools,  and  re- 
quire them  to  attend  (if  at  all)  a  school  composed  wholly  of 
children  of  that  nationality,  they  would  have  the  same  power 
and  right  to  exclude  German  children  from  our  common 
schools,  require  them  to  attend  (if  at  all)  a  school  composed 
wholly  of  children  of  that  nationality,  and  so  of  Irish,  French, 
English,  and  other  nationalities,  which  together  constitute  the 
American,  and  which  it  is  the  tendency  of  our  institutions  and 
policy  of  the  government  to  organize  into  one  harmonious 
people,  with  a  common  country,  and  stimulated  with  the  com- 
mon purpose  to  perpetuate  and  spread  our  free  institutions  for 
the  development,  elevation,  and  happiness  of  mankind." 


94  LAW   OF   PUBLIC  SCHOOLS. 

for  the  benefit  of  the  child,  the  father  is  the  proper 
party  to  make  the  application  for  the  writ,  he  being 
the  child's  natural  guardian,  and  charged  with  his 
education.1 

The  legally  appointed  guardian  of  such  minor  may 
also  procure  a  writ  for  the  same  purpose. 

4.  REGULATIONS  AS  TO  ATTENDANCE. 

It  is  competent  for  a  board  of  school  directors  to 
provide,  by  rule,  that  pupils  may  be  suspended  from 
school  if  they  shall  be  absent  or  tardy,  except  for 
sickness  or  other  unavoidable  cause,  a  certain  number 
of  times  within  a  fixed  period.* 

"Any  rule  of  the  school,  not  subversive  of  the 
rights  of  the  children  or  parents,  or  in  conflict  with 
humanity  or  the  precepts  of  divine  law,  which  tends 
to  advance  the  object  of  the  law  in  establishing 
public  schools,  must  be  considered  reasonable  and 
proper.  It  requires  but  little  experience  in  the  in- 
struction of  children  and  youth  to  convince  any  one 
that  the  only  means  which  will  assure  progress  in 
their  studies  is  to  secure  their  attention — the  appli- 
cation of  the  powers  of  their  minds  to  the  studies  in 
which  they  are  instructed.  Unless  the  pupil's  mind 
is  open  to  receive  instruction,  vain  will  be  the  effort 
of  the  teacher  to  lead  him  forward  in  learning. 

1  People  v.  Board  of  Education,  etc.,  18  Mich.,  400. 
*  Burdick  ».  Babcoek,  31  Iowa,  002. 


SCHOOL   REGULATIONS.  95 

"  This  application  of  the  mind  in  children  is 
secured  by  interesting  them  in  their  studies.  But 
this  cannot  be  done  if  they  are  at  school  one  day  and 
at  home  the  next — if  a  recitation  is  omitted  or  a  les- 
son left  unlearned,  at  the  whim  or  convenience  of 
parents.  In  order  to  interest  a  child,  he  must  be 
able  to  understand  the  subject  in  which  he  is  in- 
structed. If  he  has  failed  to  prepare  previous  les- 
sons, he  will  not  understand  the  one  which  the 
teacher  explains  to  him.  .  .  .  The  rule  requir- 
ing constant  and  prompt  attendance  is  for  the  good 
of  the  pupil,  and  to  secure  the  very  objects  the  law 
has  in  view  in  establishing  public  schools. 

"It  is  therefore  reasonable  and  proper.  ...  It 
is  required  by  the  best  interests  of  all  the  pupils 
of  the  school.  Irregular  attendance  of  pupils  not 
only  retards  their  own  progress,  but  interferes  with 
the  progress  of  those  pupils  who  may  be  regular  and 
prompt. 

"  The  whole  class  may  be  annoyed  and  hindered 
by  the  imperfect  recitations  of  one  who  had  failed  to 
prepare  his  lessons  on  account  of  absence.  The  class 
must  endure  and  suffer  the  blunders,  promptings, 
and  reproofs  of  the  irregular  pupil,  all  resulting  from 
failure  to  prepare  lessons  which  should  have  been 
studied  when  the  child's  time  was  occupied  by  direc- 
tion of  the  parent  in  work  or  visiting.  Tardiness  is 
a  direct  injury  to  the  whole  school. 


96  LAW   OF  PUBLIC   SCHOOLS. 

"  The  confusion  of  hurrying  to  seats,  gathering 
together  of  books,  etc.,  by  tardy  ones,  at  a  time 
when  all  should  be  at  study,  cannot  fail  to  greatly 
impede  the  progress  of  those  who  are  regular  and 
prompt  in  attendance.  The  rule  requiring  prompt 
and  regular  attendance  is  demanded  for  the  good  of 
the  whole  school.  While  it  may  be  admitted  that 
absence  and  tardiness  are  acts  committed  out  of 
school  hours,  yet  as-  their  effects  and  consequences 
operate  upon  the  school — the  pupils  when  assembled 
for  instruction — they  are  therefore  subject  to  con- 
trol by  rules  for  the  government  of  the  school.  If 
the  effects  of  acts  done  out  of  school  hours  reach 
within  the  school-room  during  school  hours,  and  arc 
detrimental  to  good  order  and  the  best  interest  of 
the  pupils,  it  is  evident  such  acts  may  be  forbidden. 
Truancy  is  a  fault  committed  away  from  school. 
Can  it  be  pretended  that  it  cannot  be  reached  for 
correction  by  the  school  board  and  teachers  ? 

*'  A  pupil  may  engage  in  sports  beyond  school  that 
will  render  him  unfit  to  study  during  school  hours. 
Cannot  these  sports  be  forbidden  ?  The  view  that 
acts,  to  be  within  the  authority  of  the  school  board 
and  teachers  for  discipline  and  correction,  must  be 
done  within  school  hours,  is  narrow  and  without 
regard  to  the  spirit  of  the  law  and  best  interest  of 
our  common  schools.  It  is  in  conflict,  too,  with 
authority.  See  upon  this  point  Lander  v.  Scavcr,  3;J 


SCHOOL   REGULATIONS.  97 

Vt.,  114,  and  Sherman  v.  Inhabitants  of  Charles- 
town,  8  Gush.,  160.  The  doctrine  we  have  above 
endeavored  to  sustain  is,  in  these  cases,  distinctly 
announced. 

"  The  rule  in  question,  as  we  have  shown,  operates 
directly  upon  the  order  of  the  school — upon  the 
pupils  when  assembled  for  instruction.  It  promotes 
efficiency  of  the  school,  and  secures  the  progress  of 
the  pupils  in  their  studies.  It  is,  therefore,  a  rule 
for  the  government  of  the  school,  and  must  be  re- 
garded as  proper  and  reasonable,  and  within  the 
authority  of  the  school  officers  to  prescribe  and  en- 
force. .  .  .  Again,  it  is  said  that  the  rules  visit 
upon  the  child  punishment  for  the  parent's  offence. 
That  is,  the  child  is  kept  from  school  through  the 
fault  of  the  parent,  and  is  punished  for  the  act  of  the 
parent  in  detaining  him.  ...  If  the  good  of 
the  children  were  to  be  considered  only,  there  would 
bo  force  in  this  argument ;  but  it  is  completely  an- 
swered by  the  consideration  that  the  parent's  act  is 
an  injury  to  the  whole  school.  .  .  .  The  child, 
through  no  fault  of  his  own,  or  of  his  patents,  may 
be  afflicted  with  a  contagious  disease,  yet,  as  the  good 
of  other  pupils  demand  it,  he  may  be  for  that  reason 
forbidden  attendance  at  school.  Spear  v.  Cum- 
mings,  23  Pick.,  225.  .  .  .  Tlie  good  of  the 
whole  cannot  be  sacrificed  for  the  advantage  of  one 
pupil,  who  has  an  unreasonable  father.  Upon  the 


98  LAW   OF  PUBLIC  SCHOOLS. 

parent  must  rest  the  great  responsibility  of  depriving 
his  child  of  the  opportunities  of  education,  which 
the  laws  of  the  State  so  generously  offer.  If  the  ed- 
ucation of  children  were  compulsory  upon  parents, 
who  could  be  reached  by  proper  penalties,  as  for  an 
offence,  for  failure  to  send  their  children  to  school, 
in  that  case  the  child  could  be  relieved  from  the 
hardship  of  expulsion,  and  the  parent  made  re- 
sponsible for  his  acts  in  detaining  him  from  school. 

"  As  the  law  now  is,  no  other  means  can  be  de- 
vised for  enforcing  the  rule  requiring  regular  and 
prompt  attendance,  than  the  penalty  of  expulsion."  ' 

In  the  case  of  James  Ferriter  et  al.  v.  J.  M.  Tyler 
et  al.,  in  the  Supreme  Court  of  Vermont,*  the  de- 
cision in  which  contains  another  exhaustive  discus- 
sion of  the  power  of  the  directors  to  prescribe  the 
hours  of  attendance,  etc.,  the  complainants  were 
members  of  tho  Catholic  church  in  the  village  of 
Brattleboro'.  On  June  4th,  1875,  the  priest  of  said 
church,  acting  for  the  complainants,  sent  to  the  re- 
spondents, who  were  the  prudential  committee  of 
that  school  district,  a  request  that  the  children  might 
be  excused  from  attendance  at  school  on  all  holy 
days,  and  especially  on  that  day,  it  being  Holy  Corpus 
Christi  day.* 

1  Per  Beck,  J.,  in  Burdick  n.  Bubcock,  31  Iowa,  502. 

1  Ferriter  et  al.  r>.  Tyler  et  al.,  48  Vt.,  444. 

1  The  most  splendid  festival  of  the  Church  of  Rome.     It  was 


SCHOOL   REGULATIONS.  99 

The  committee  replied  that  the  request  could  not 
be  granted,  as  it  would  involve  closing  some  of  the 
schools  and  greatly  interrupting  others.  It  further 
appeared  that  about  sixty  Catholic  children,  by  direc- 
tion and  command  of  their  parents,  were  kept  from 
school  to  attend  religious  services  on  the  4th  of 
June,  1875,  being,  as  stated  in  the  bill,  "Holy  Cor- 
pus Christi"  day.  All,  or  nearly  all,  applied  either 
that  afternoon  or  next  morning,  and  were  told  by 
the  committee  that,  as  they  had  absented  themselves 
without  permission,  and  in  violation  of  the  rules  of 
the  schools,  which  they  well  understood,  they  could 
not  return  without  an  assurance  from  their  parents 
or  their  priest  that  in  future  they  would  comply 
with  the  rules  of  the  schools,  at  the  same  time  assur- 
ing the  children  and  many  of  their  parents,  and  also 
the  priest,  that  if  the  schools  would  not  be  again  in- 
terrupted in  like  manner  they  would  gladly  admit 
said  children  to  them  ;  that  the  priest  and  parents 
refused,  saying  they  claimed  as  a  matter  of  right  that 
they  might  take  their  children  from  the  schools  on 
all  days  which  they  regard  as  holy  days.  The  bill 
asked  an  injunction  to  restrain  the  respondents  from 

instituted  in  1264,  in  honor  of  the  Consecrated  Host,  and  with 
u  view  to  its  adoration,  by  Urban  IV.,  who  appointed  for  its 
celebration  the  Thursday  after  the  festival  of  the  Trinity,  and 
promised  to  all  the  penitent  who  took  part  in  it  indulgence  for 
a  period  of  from  forty  to  one  hundred  days. 


100  LAW   OF  PUBLIC  SCHOOLS. 

preventing    the  admission   of  the  children  to  the 
schools. 

The  court  below  dismissed  the  bill,  and  the 
Supreme  Court,  Barrett,  J.,  delivering  the  opinion, 
affirmed  the  decree  dismissing  the  bill. 

Judge  Barrett  places  the  decision  upon  the  ground 
taken  in  the  Iowa  case  previously  quoted  from — viz.. 
That  it  is  the  right  of  the  directors  of  the  public 
schools  to  prescribe  the  hours  of  attendance  of  the 
pupils,  to  make  a  proper  system  of  punishments,  etc. 

In  so  doing  the  public  rights  and  convenience 
must  govern,  without  regard  to  the  wishes,  con- 
venience, or  private  preferences  of  parents  or  others. 

This  rule  applies  to  the  attendance  of  children  on 
public  or  private  religious  worship  on  week-days  dur- 
ing the  prescribed  hours  of  school.  Such  purpose  is 
no  excuse  for  the  violation  of  a  rule  of  school.  The 
following  is  quoted  from  the  opinion  :  "  All  are  sub- 
jected alike  to  the  law  and  its  administration.  The 
Methodist,  who  regards  his  camp-meeting  as  de- 
manding as  much  of  his  conscience  as  the  Episco- 
palian does  his  Christmas  or  Lent ;  the  Episcopalian, 
•who  regards  the  feast  and  fast  days  of  his  church  as 
demanding  as  much  of  his  conscience  as  the  Catholic 
does  his  holy  "  Corpus  Christi"  ;  the  Congregation- 
alist,  and  Presbyterian,  and  Baptist,  and  other  sects, 
who  care  for  none  of  these  things,  and  whose  prayer- 
meetings  and  protracted  meetings  demand  as  much 
of  their  consciences  as  in  the  case  of  those  before 


SCHOOL   REGULATIONS.  101 

named,  and  the  man  of  no  preference  and  no  re- 
ligion— all  and  all  their  children  are  subjected  alike 
to  the  school  laws  and  to  their  administration. 

"  Let  it  be  granted  that  parents  and  others  may, 
upon  their  own  respective  reasons,  control  the  at- 
tendance of  the  scholars,  as  against  the  official  right 
of  the  committee  in  that  behalf,  and  practically  the 
ground  of  system  and  order  and  improvement  has 
no  existence.  For  the  parents  and  guardians  of  the 
scholars  may  each  on  his  own  motion,  and  on  his 
own  notions,  withhold  their  respective  scholars  from 
the  schools.  In  this  respect,  so  far  as  its  effect  on 
the  schools  is  concerned,  it  makes  no  difference 
whether  the  occasion  and  motive  involve  conscience, 
will,  whim,  or  the  pocket."  ' 

In  Spear  v.  Cummings,  Chief  Justice  Shaw  says  : 
"  The  law  provides  that  every  town  shall  choose  a 
school  committee,  who  shall  have  the  general  charge 
and  superintendence  of  all  the  public  schools  in  such 
towns,"  and  that  "this  includes  the  power  of  de- 
termining what  pupils  shall  be  received  and  what 
pupils  rejected.  The  committee  may  for  good  cause 
determine  that  some  shall  not  be  received,  as,  for  in- 
stance, if  infected  with  any  contagious  disease,  or  if 
the  pupil  or  parents  shall  refuse  to  comply  with  reg- 
ulations necessary  to  the  discipline  and  good  man- 
agement of  the  school."  4 

1  Ferriter  et  nl.  v.  Tyler  el  al.,  48  Vt,  444.     8  23  Pick.,  224. 


102  LAW   OF   PUBLIC  SCHOOLS. 

A  rule  barring  the  doors  of  school-houses  against 
little  children  coming  from  great  distances  in  the 
winter,  for  being  a  few  minutes  tardy,  is  unreason- 
able and  unlawful,  as  being  in  its  practical  operation 
little  less  than  wanton  cruelty.1 

5.  REGULATIONS  AS  TO  THE  USE  OF  THE   BIBLE, 
ETC. 

Perhaps  no  other  question  treated  of  in  this  vol- 
ume has  excited  the  interest,  alarmed  the  under- 
standings, or  aroused  the  feelings  of  the  people  to 
such  an  extent  as  the  question  whether  the  Bible 
should  be  read  in  our  public  schools  or  excluded 
therefrom. 

It  must  be  borne  in  mind  that  the  Constitution  of 
the  United  States  goes  only  to  the  length  of  ordain- 
ing that  Congress  shall  make  no  law  respecting  an 
establishment  of  religion  or  prohibiting  the  free  ex- 
ercise thereof.9 

Mr.  Story  says  of  this  article  :  ''It  was  under  a 
solemn  consciousness  of  the  dangers  from  ecclesiasti- 
cal ambition,  the  bigotry  of  spiritual  pride,  and  the 
intolerance  of  sects,  exempliOed  in  our  domestic  as 
well  as  in  foreign  annals,  that  it  was  deemed  advisable 
to  exclude  from  the  national  government  all  power 
to  act  upon  the  subject.  The  situation,  too,  of  the 

1  Thompson  v.  Beaver,  63  111.,  353. 
*  Article  1,  Amendments. 


SCHOOL   REGULATIONS.  103 

different  States  equally  proclaimed  the  policy  as  well 
as  the  necessity  of  such  an  exclusion. 

"  In  some  of  the  States  Episcopalians  constituted 
the  predominant  sect  ;  in  others,  Presbyterians  ;  in 
others,  Congregationalists  ;  in  others,  Quakers  ;  and 
in  others,  again,  there  was  a  close  numerical  rivalry 
among  contending  sects.  It  was  impossible  that 
there  should  not  arise  perpetual  strife  and  perpetual 
jealousy  on  the  subject  of  ecclesiastical  ascendancy, 
if  the  national  government  were  left  free  to  create  a 
religious  establishment. 

"The  only  security  was  in  extirpating  the  power. 
But  this  alone  would  have  been  an  imperfect 
security,  if  it  had  not  been  followed  up  by  a  declara- 
tion of  the  right  of  the  free  exercise  of  religion,  and 
a  prohibition  (as  we  have  seen)  of  all  religious  tests. 
Thus  the  whole  power  over  the  subject  of  religion  is 
left  exclusively  to  the  State  governments,  to  be  acted 
upon  according  to  their  own  sense  of  justice  and  the 
State  constitutions  ;  and  the  Catholic  and  the  Prot- 
estant, the  Calvinist  and  the  Armenian,  the  Jew  and 
the  infidel,  may  sit  down  at  the  common  table  of  the 
national  councils,  without  any  inquisition  into  their 
faith  or  mode  of  worship."  (Story  on  the  Consti- 
tution, sec.  1879.) 

No  inhibition  is  laid  upon  the  States,  but  by  the 
compacts  under  which  some  of  the  newer  States  were 
admitted  into  the  Union  they  were  required  to  pro- 


104  LAW   OF   PUBLIC   SCHOOLS. 

vide  by  an  ordinance  irrevocable,  without  the  consent 
of  the  United  States  and  the  people  of  the  State, 
that  perfect  toleration  of  religious  sentiment  shall  be 
secured.  Apart  from  these  few  exceptions,  it  is  left 
entirely  optional  with  the  States  to  pass  any  law  re- 
specting religion  not  inconsistent  with  the  constitu- 
tion of  the  State  by  which  such  law  is  adopted.  The 
State  constitutions,  however,  contain  the  same  prin- 
ciple, but  differently  expressed.  No  general  rule  can 
be  laid  down  which  shall  apply  with  critical  accuracy 
to  each  of  the  States.  But  it  is  safe  to  say,  from  an 
examination  of  the  State  constitutions,  that  they  do 
not  go  to  the  length  of  ostracizing  the  Bible,  and  do 
not  necessarily  exclude  the  Bible  from  the  public 
schools.  A  stranger  to  our  institutions  might 
reasonably  infer,  from  much  of  the  public  discussion 
of  the  question,  that  our  public  schools  are  hotbeds 
of  sectarian  religion,  in  which  the  consciences  of 
some  of  the  children  are  continually  suffering  vio- 
lence and  persecution.  Such  a  thing  as  sectarian 
teaching,  or  the  teaching  of  any  religion  as  religion, 
or  of  any  irreligion,  is  in  fact  unknown  to  the 
public-school  system. 

It  is  the  custom  in.  many  of  the  public  schools  to 
open  the  exercises  of  the  day  with  reading  a  few 
verses  of  the  Bible  without  note  or  comment. 
In  some  of  the  large  cities  this  custom  has  been 
abandoned  by  the  school  boards.  The  whole  sub- 


SCHOOL  REGULATIONS.  105 

ject  is  usually  left  to  the  discretion  of  the  board  of 
directors,  as  are  other  rules  prescribing  studies, 
etc. 

Where  the  law  leaves  such  a  discretion  with  the 
board,  as  it  generally  does,  the  courts  have  refused  to 
restrain,  coerce,  or  interfere  with  such  discretion. 
No  court  of  last  resort  has  ever  held  that  a  rule 
adopted  by  a  public-school  board,  requiring  that  the 
Bible  should  be  read  in  the  schools  under  its  charge, 
is  unconstitutional.  On  the  contrary,  it  has  been 
held  by  the  highest  courts  in  several  of  the  States 
that  such  a  rule  is  entirely  proper  and  not  unconsti- 
tutional.1 

It  has  been  decided  that  a  rule  requiring  every 
pupil  to  read  a  particular  version  of  the  Holy  Bible, 
though  it  may  be  against  the  conscience  of  some  to 
do  so,  violates  neither  the  letter  nor  the  spirit  of  the 
constitution  of  Maine." 

It  was  held  in  Massachusetts  that  a  school  com- 
mittee of  a  town  has  the  legal  power  to  pass  a  rule 
requiring  a  school  to  be  opened  by  reading  from  the 
Bible  and  prayer  every  morning,  and  that  each  child 
shall  bow  the  head  during  such  prayer,  and  that  any 
pupil  shall  be  excused  from  bowing  the  head  whose 
parents  request  it ;  and  where  any  pupil  refuses  to 
obey  the  rule,  and  his  parents  refuse  to  request  that 

1  Cooley  on  Torts,  289. 

J  Donnhoe  c.  Richards,  38  Me.,  376. 


106  LAW   OF   PUBLIC  SCUOOLS. 

he  shall  be  excused,  the  committee  may  expel  such 
pupil  from  the  school.1 

In  1870  arose  the  case  of  the  Board  of  Education 
of  Cincinnati  v.  Minor,  involving  the  question  of 
the  right  of  the  board  to  prohibit  the  reading  of  re- 
ligious books,  including  the  Holy  Bible,  in  the  pub- 
lic sdiools  of  Cincinnati.  The  Superior  Court  of 
that  city  granted  a  perpetual  injunction  restraining 
the  board  from  carrying  out  its  prohibition.  The 
majority  opinions  were  delivered  by  Judges  Hagans 
and  Storer,  and  Judge  Taft  delivered  a  dissenting 
opinion.  The  Board  of  Education  appealed  the  cause 
to  the  Supreme  Court  of  Ohio,  and  that  court  in 
1872  held  that  the  management  of  the  public  schools 
being  under  the  exclusive  control  of  directors,  trus- 
tees, and  boards  of  education,  the  judicial  power  will 
not  direct  what  instruction  shall  be  given,  or  what 
books  shall  be  read  therein.*  This  case  created  great 
interest,  and  the  discussion  in  the  Superior  Court  of 
Cincinnati  and  in  the  Supreme  Court  of  Ohio  is  per- 
haps the  most  exhaustive  discussion  extant  011  the 
subject. 

The  Supreme  Court  of  Illinois  has  recently  decided 
a  similar  case.  The  suit  was  an  action  on  the  case 
brought  by  Edward  McCormick  against  Cora  Burt 

1  Spiller  «.  Woburn,  12  Allen  (Mass.)..  127. 
'  Board  of  Education  of  Cincinnati  t>.  Minor,  23  Ohio  St., 
211. 


SCHOOL   REGULATIONS.  107 

and  the  directors  of  the  school  she  was  teaching,  to 
recover  damages  on  account  of  his  suspension  by  the 
directors  from  the  benefits  of  the  school,  for  the  non- 
observance  of  a  rule  adopted  by  them  for  the  govern- 
ment of  the  school. 

The  rule  provided  that  the  teacher  might  read  as 
an  opening  exercise  every  morning,  not  occupying 
more  than  fifteen  minutes,  a  chapter  from  the  King 
James  translation  of  the  Bible.  No  one  was  re- 
quired to  be  present  at  such  exercise  unless  he  chose 
to  do  so,  and  while  such  exercise  was  being  con- 
ducted every  pupil  was  required  to  lay  aside  his 
books  and  remain  quiet. 

The  plaintiff  refused  to  obey  the  rule,  and  for  the 
non-observance  of  the  rule,  which  he  claimQd  was 
void  as  interfering  with  the  religious  convictions  of 
himself  and  his  father,  he  was  suspended  from  "  all 
the  rights  and  privileges  of  said  school  until  he 
should  express  a  willingness  to  comply  with  the 
rule." 

Section  48  of  the  Illinois  school  law  makes  it  the 
duty  of  the  directors  "  to  adopt  and  enforce  all 
necessary  rules  and  regulations  for  the  management 
and  government  of  schools  ;  ...  to  direct  what 
branches  of  study  shall  be  taught,  and  what  text-' 
books  and  apparatus  shall  be  used  in  the  several 
schools."  The  court  held  that  under  this  section 
the  directors  exercise  judgment  and  discretion  in  the 


108  LAW   OF   PUBLIC  SCHOOLS. 

expulsion  or  suspension  of  a  pupil  for  refusal  to 
obey  proper  rules  and  regulations,  and  that  they  are 
not  liable  in  damages  for  the  expulsion  or  suspension 
of  a  pupil,  where  they  act  in  good  faith,  and  not 
wantonly  or  maliciously.1 

Thus  the  tendency  of  the  ablest  judicial  decisions 
is  to  view  favorably  those  statutes  which  intrust  the 
control  of  the  schools  and  the  selection  of  text-books 
and  studies  to  the  local  school  boards  to  be  regu- 
lated according  to  the  wants  of  the  community,  and 
where  there  is  no  statutory  or  constitutional  pro- 
vision to  the  contrary,  and  the  general  management 
of  the  schools  is  intrusted  to  the  various  school 
boards,  such  boards  would,  under  the  authorities, 
have  tjie  right  to  prescribe,  or  to  prohibit,  the  use  of 
the  Bible  and  the  Lord's  Prayer. 

Speaking  on  the  subject  of  religious  liberty  and 
equality,  Mr.  Cooley  says  :  "  But  while  thus  careful 
to  establish  religious  freedom  and  equality,  the 
American  constitutions  contain  no  provisions  which 
prohibit  the  authorities  from  such  solemn  recogni- 
tion of  a  superintending  Providence  in  public  trans- 
actions and  exercises  as  the  general  religious  senti- 
ment of  mankind  inspires  and  as  seems  meet  in 
Unite  and  dependent  beings.  Whatever  may  be  the 

1  McCormick  t>.  Burt,  Supreme  Court  of  Illinois,  March 
17lh,  1880.  Reported  in  Northwestern  Reporter,  Illinois 
Supplement,  vol.  i.,  No.  5,  p.  340. 


SCHOOL   REGULATIONS.  109 

shades  of  religious  belief,  all  must  acknowledge  the 
fitness  of  recognizing  in  important  human  affairs  the 
superintending  care  and  control  of  the  great  Gov- 
ernor of  the  universe,  and  of  acknowledging  with 
thanksgiving  his  boundless  favors,  at  the  same  time 
that  we  bow  in  contrition  when  visited  with  the  pen- 
alties of  his  broken  laws.  No  principle  of  constitu- 
tional law  is  violated  when  thanksgiving  or  fast  days 
are  appointed  ;  when  chaplains  are  designated  for 
the  army  and  navy  ;  when  legislative  sessions  are 
opened  with  prayer  or  the  reading  of  the  Scriptures  ; 
or  when  religious  teaching  is  encouraged  by  exempt- 
ing houses  of  religious  worship  from  taxation  for  the 
support  of  the  State  government.  Undoubtedly  the 
spirit  of  the  Constitution  will  require,  in  all  these 
cases,  that  care  be  taken  to  avoid  discrimination  in 
favor  of  any  one  denomination  or  sect ;  but  the 
power  to  do  any  of  these  things  will  not  be  uncon- 
stitutional simply  because  of  being  susceptible  of 
abuse."  ' 

In  some  of  the  States  there  are  statutes  concerning 
the  use  of  the  Bible  in  the  public  schools. 

In  Massachusetts  it  is  provided  that  the  committee 
shall  require  the  reading  of  the  Bible  in  the  schools 
without  note  or  comment.2 

1  Cooley's  Constitutional  Limitations,  470. 
*  Supplement    General    Statutes    of    Massachusetts,   chap. 
Ivii.,  sec.  1. 


110  LAW    OF   PUBLIC   SCHOOLS. 

In  New  Jersey  the  statute  makes  lawful  the  read- 
ing of  the  Bible  and  the  use  of  the  Lord's  Prayer  in 
the  public  schools  of  that  State.1 

In  Indiana,3  Iowa,'  Louisiana,4  and  Mississippi,1 
it  is  enacted  that  the  Bible  shall  not  be  excluded 
from  the  public  schools. 

In  Iowa  and  Louisiana  it  is  added  that  no  chil.l 
shall  be  compelled  to  read  it  contrary  to  the  wishes 
of  his  parent  or  guardian. 

In  conclusion  it  may  be  laid  down  : 

(1.)  That  under  the  constitutions  of  the  American 
States  sectarian  or  denominational  religious  teaching 
in  the  public  schools  is  not  only  improper  but  un- 
lawful. 

'  (2.)  That  where  a  school  board  is  charged  with  the 
control  and  regulation  of  public  schools  and  of  the 
studies  and  text-books  used  therein,  it  is  proper  and 
lawful  for  such  school  board  to  prescribe  the  reading 
of  the  Bible,  without  note  or  comment,  as  an  ex- 
ercise in  such  schools. 

1  Rev.  Statutes  of  New  Jersey,  p.  1081,  sec.  65. 

9  Statutes  of  Indiana,  Rev.  of  1876,  vol.  i.,  chap,  ccxxiv., 
sec.  167,  p.  815. 

»  Code  of  1873,  sec.  1764. 

4  Voorbies'  Rev.  Statutes  of  Louisiana,  sec.  1288,  p.  338. 

*  Rev.  Code  of  Mississippi,  chap,  xxxix.,  art.  xiii.,  uec. 
2048. 


SCHOOL   REGULATIONS.  Ill 

6.  REGULATIONS  AS  TO  STUDIES. 

A  rule  prescribed  by  a  board  of  education,  that  a 
pupil  failing  to  come  prepared  with  a  required  exer- 
cise or  with  a  reasonable  excuse  shall  be  suspended, 
is  a  reasonable  rule,  such  as  the  board  has  authority 
to  adopt.1 

A  requirement  by  a  teacher  of  a  district  school, 
that  the  pupils  studying  grammar  shall  write  Eng- 
lish composition,  is  a  reasonable  rule,  and  refusal  to 
comply  therewith,  in  the  absence  of  a  request  from 
the  parents  that  he  be  excused  therefrom,  will  justify 
expulsion  of  the  pupil  from  school.'2 

No  parent  can  insist  that  his  child  shall  be  placed 
or  kept  in  particular  classes,  when  by  so  doing 
others  will  be  retarded  in  their  studies,  or  that  his 
child  shall  be  taught  studies  not  in  the  prescribed 
course  of  the  school,  or  be  allowed  to  use  a  text-book 
different  from  that  in  use  in  the  school,  or  that  he 
shall  be  allowed  to  adopt  methods  of  study  that  in- 
terfere with  other  pupils  in  their  studies. 

If  a  study  has  no  connection  with  the  studies 
which  a  pupil  wishes  to  pursue,  it  can  make  no  differ- 
ence to  the  other  pupils,  or  those  in  charge, 
whether  such  pupil  undertake  that  study  or  not,  and 

1  Sewell  v.  Board  of  Education,  29  Ohio  St.,  89. 
8  Guernsey  v.  Pitkin,  32  Vt.,  224  ;  Sewell  ®.  Board  of  Edu- 
cation, 29  Ohio  St.,  89. 


112  LAW   OF   PUBLIC   SCHOOLS. 

if  such  a  study  is  interdicted  by  the  pupil's  parent 
the  child  should  be  admitted  to  advanced  standing, 
along  with  his  class  or  grade,  if  he  passes  a  satisfac- 
tory examination  of  the  other  studies  in  his  class.1 

There  are  several  cases  which  seem  to  hold  that  a 
teacher  cannot  punish  nor  the  directors  or  trustees 
expel  a  pupil  for  refusing  to  pursue  any  study  not 
prescribed  by  law,  and  from  which  the  parents  or 
guardian  request  that  the  child  be  excused.4 

But  where  the  study  from  which  the  parent  wishes 
the  child  to  be  excused  is  one  in  which  the  child 
must  necessarily  acquire  some  proficiency  before  it 
can  pursue  other  studies  in  a  course,  it  may  well  be 
said  that  none  of  the  decisions  above  referred  to 
negative  the  idea  that  the  child  might  be  denied  en- 
trance to  such  advanced  class.  While  parents  may 
have  the  right  to  say  that  their  children  shall  not 
pursua  particular  studies  not  prescribed  by  law,  yet 
the  school  must  not  be  burdened  and  annoyed  by 
irregular  study,  and  proficiency  in  one  study  may  be 
a  requisite  for  admission  to  another  of  the  same 
course.* 

1  Trustees  of  School,  etc.,  «.  The  People  ex  rel.  Van  Allen, 
87111.,  303. 
1  Ruleson  t>.  Post,  79  111.,  567  ;   Morrow  e.  Wood,  35  Wis. 

no. 

1  Ward  r.  Flood.  48  Cal..  38  ;  Trustees  of  School  t>.  The 
IVople  ex  rd.  Van  Allrn.  87  III.,  303. 


SCHOOL   REGULATIONS.  113 

"Where  such  study  is  not  connected  with  the 
studies  to  be  pursued,  and  proficiency  in  it  is- not  req- 
uisite in  order  to  pursue  other  studies  in  the  same 
course,  then  it  seems  the  parents  have  a  right  to 
prohibit  such  study,  and  the  child  cannot  lawfully 
be  whipped,  expelled,  or  refused  advanced  standing, 
solely  because  of  his  refusal  to  pursue  such  study.1 

7.  REGULATIONS  AS  TO  CONDUCT,  ETC. 

The  general  school  committee  of  a  town  has  power 
to  exclude  therefrom  a  child  of  immoral  or  licentious 
character,  though  such  character  be  not  manifested 
by  any  acts  in  the  school-room.  This  was  held  in  a 
case  in  which  there  was  no  prescribed  rule  on  the  sub- 
ject. Chief  Justice  Shaw  says  :  "  It  seems  to  be  admit- 
ted, if  not  it  could  hardly  be  questioned,  that  for 
misconduct  in  school,  for  disobedience  to  its  reason- 
able regulations,  a  pupil  may  be  excluded.  Why  so  ? 
There  is  no  express  provision  in  the  law  (as  it  then 
was)  authorizing  such  exclusion  ;  it  results  by  neces- 
sary implication  from  the  provision  of  law  requiring 
good  discipline.  It  proves  that  the  right  to  attend  is 
not  absolute,  but  one  to  be  enjoyed  by  all  on  reason- 
able conditions."  Again,  "  But  the  court  are  of 
opinion  .  .  .  that  a  power  is  vested  in  the  gen- 
eral school  committee,  or  the  master  with  their  ap- 

1  Trustees  of  Schools,  etc.,  v.  The  People,  etc.,  87  111.,  803  -, 
Ruleson  v.  Post,  79  111.,  567  ;  Morrow  v.  AVood,  35  Wis.,  59. 


LAW    OF   PUBLIC   SCHOOLS. 

probation  and  direction,  to  exclude  a  pupil  .  .  .  for 
good  and  sufficient  cause."  ' 

It  is  undoubtedly  true  that  trustees  or  committees 
have  the  power,  and  it  is  their  duty,  to  dismiss  or 
exclude  a  pupil  from  their  school  when,  in  their 
judgment,  it  is  necessary  for  the  good  order  and 
proper  government  of  the  school  so  to  do.* 

They  may  do  so  to  prevent  a  pupil  from  bringing 
contagion  into  a  school.3 

It  has  even  been  held  that  the  teacher  may,  when 
necessary  to  maintain  proper  discipline  in  school,  ex- 
pel a  pupil,  and  if  the  prudential  committee  insist 
upon  the  return  of  such  scholar  to  school  when  his 
presence  would  be  fatal  to  the  maintenance  of  disci- 
pline, the  teacher  may  lawfully  quit  the  school  and 
yet  recover  wages  up  to  the  time  she  quit.4 

But  the  case  in  which  this  was  decided  was  an 
aggravated  one,  and  the  decisions  of  other  States  do 
not  warrant  the  teacher  in  going  so  far.  It  is  better 
merely  to  suspend  the  pupil,  and  report  the  matter  to 
the  board  for  such  further  action  as  may  seem  fit. 

The  school  authorities  have  a  right  to  exclude  from 

1  Sherman  z>.  Charlestowii,  8  Gushing,  160  ;  Peck  r.  Smith, 
41  Conn.,  442. 
«  Stephenson  t>.  Hall  etal.,  14  Barb.,  222. 

3  Spear*.  Cummings,  23  Pick.,  22.->. 

4  Scott  v.  School  District  No.  2  in  Fairfax,  46  Vt.,  452.     And 
see  The  State  t>.  Williams,  2?  Vt.,  755. 


SCHOOL   REGULATIONS.  115 

their  grounds  or  buildings  any  one  who  enters  there- 
in to  disturb  the  peace  or  interfere  with  the  legiti- 
mate exercises  of  the  school.1 

Where  a  member  of  the  district  school  committee 
was  present  at  the  opening  of  school  for  the  day,  and 
one  of  the  larger  boys  of  the  school  addressed  him,  in 
the  presence  of  other  pupils,  in  a  profane  and  insult- 
ing manner,  and  such  committeeman  ordered  the 
boy  out  of  the  room,  and,  on  his  refusing,  put  him 
out  by  force,  using  no  more  force  than  was  necessary, 
the  committeeman  was  justified  in  so  doing.2 

In  most  of  the  States  there  is  a  statute  making  it  a 
criminal  offence  for  any  one  wilfully  to  disturb  or  in- 
terrupt any  school  or  religious  meeting. 

In  case  any  one  should  wilfully  disturb  or  inter- 
rupt the  school,  it  would  be  proper  for  the  teacher 
or  any  one  cognizant  of  the  facts  to  lodge  a  com- 
plaint against  the  offender  before  a  justice  of  the 
peace.3 

8.  GENERAL  PRINCIPLE. 

The  general  principle  running  through  all  of 
these  decisions  is  that  the  directors  or  trustees,  as  the 
case  may  be,  have  the  power  and  authority  to  pro- 

1  Hughes  v.  Goodell,  3  Pittsb.  L.  J.  (Pa.),  264. 

2  Peck  v.  Smith,  41  Conn.,  442. 

3  State  v.  Leighton,  35  Me.,  195  ;  Township  of  Soldier  v. 
B;irrett,  47  Iowa,  111. 


11C  LAW   OF   PUBLIC   SCHOOLS. 

mulgate  and  enforce  such  orders,  rules,  and  regula- 
tions as  are  not  subversive  of  the  legal  rights  of  the 
parents  or  children,  or  in  conflict  with  humanity 
and  the  principles  of  Divine  law,  and  which  tend  to 
advance  the  object  of  the  law  in  establishing  schools.1 
And  that  whatsoever  has  a  direct  and  immediate 
tendency  to  injure  the  school  in  its  important  in- 
terests, or  to  subvert  the  authority  of  those  in  charge 
of  it,  is  properly  a  subject  for  regulation  and  disci- 
pline, and  this  is  so  wherever  the  acts  may  be  com- 
mitted.4 

There  is,  nevertheless,  a  limit  to  the  powers  of  the 
school  directors,  and  that  limit  is  the  needfulness  or 
reasonableness  of  the  rule. 

A  board  of  directors  having  made  a  rule  that  no 
pupil  should,  during  the  school  term,  attend  a  social 
party,  the  plaintiff,  a  pupil  of  the  school,  violated 
the  rule,  and  was  expelled  from  school  for  so  doing, 
it  was  held  that  under  the  law  the  board  had  power 
to  make  needful  rules  for  the  government  of  pupils 
while  at  school,  but  no  power  to  follow  them  home 
and  govern  their  conduct  while  under  the  parental 
eye  ;  and  that  in  prescribing  the  rule  it  had  gone  be- 
yond its  powers.* 

The  Wisconsin  court  has  thrown  out  a  suggestion, 

1  Rut-dirk  v.  Babcock,  31  Iowa,  562. 
*  Lander*.  Seaver,  32  Vt.,  114. 
8  Drill  e.  Snodgrass.  66  Mo.,  286. 


SCHOOL   REGULATIONS.  117 

which  teachers  may  profitably  heed,  and  that  is  that 
the  directors  are  the  prime  rule-makers  for  the 
schools  under  their  control.  It  is  always  well  for  a 
teacher  to  suggest  any  matter  of  regulation  to  the 
board  where  there  is  sufficient  time  to  do  so,  and' 
they  should  bear  in  mind  that  while  they  may,  when 
necessary,  make  rules  in  the  absence  of  any  estab- 
lished by  the  board,  yet  their  power  is  in  this  respect 
limited,  and  the  law  comparatively  unsettled.1 

Whenever  it  is  necessary  for  a  teacher  to  act  at 
once  in  order  to  maintain  order  and  discipline,  and 
to  protect  the  schools  from  the  misconduct  of  a  pupil, 
the  teacher  is  doing  his  duty  and  right  by  suspend- 
ing such  pupil,  and  he  is  justified  in  doing  this  with- 
out waiting  for  an  order  of  the  directors.2 

Neither  the  teacher,  with  a  legal  certificate  of  qual- 
ifications and  lawfully  employed,  nor  the  board  of 
school  directors  or  trustees,  are  liable  in  damages  for 
tort  by  reason  of  having  expelled  a  child  from 
school,  so  long  as  they  act  in  good  faith.  If  they  err 
in  good  faith  in  the  discharge  of  their  duties  they 
are  not  liable.3 

1  State  v.  Burton,  45  Wis.,  150  ;  Morrow  v.  Wood,  S5  Wis., 
59. 

2  State  ex  rel  ,  etc.,  v.  Burton,  45  Wis.,  150. 

3  Donahoe  v.  Richards  et  al.,  38  Me.,  376  ;  Douahoe,  etc.,  v. 
Richards  et  al.,  38  Me.,  379  ;  Sewell  v.  Board  of  Education,  29 
Ohio  St.,  89;  Spear  ».  Cummings,   23  Pick.,  224;    Boyd  v. 
Blaisdell,  15  Ind.,  73  ;  Stephenson  v.  Hall,  14  Barb.,  222.     But 


118  LAW   OF   PUBLIC   SCHOOLS. 

It  has  been  said  that  to  make  either  liable  there 
must  be  malice,  wilfulness,  or  an  evil  mind  bent  on 
mischief,1  but  this  may  be  inferred  from  the  acts. 

Nor  is  the  teacher  who  suspends  or  expels  a  pupil 
liable  on  an  implied  contract  to  teach.  There  is  no 
implied  contract  between  teacher  and  pupil  in  our 
public  schools  that  the  former  shall  teach  the  latter. 
The  only  contract  of  the  teacher  is  with  the  board 
of  directors  employing  him,*  and  he  is  accountable  to 
the  board  alone  for  his  acts  as  teacher,  unless  he  is 
stirred  by  malicious  motives,  and  thus  renders  him- 
self amenable  to  the  law. 

The  parent  cannot  limit  the  teacher's  authority 
over  the  pupil,  nor  deprive  him  of  it  except  by  re- 
moving the  child  from  the  school. 

•where  the  child  is  entitled  to  go  to  the  school,  and  the  expul- 
sion is  wrongful,  see  contra,  Roe  t>.  Deming,  21  Ohio  Si.,  COO. 

1  Drill  v.  Snodgrass,  00  Mo.,  280  ;  Commonwealth  r.  Seed, 
5  Pa.  L.  J.  R.,  78. 

•  Sluckey  t>.  Churchman,  2  Bradw.  (111.),  584. 


COEPORAL    PUNISHMENT.  119 


CHAPTER    X. 

COEPORAL   PUNISHMENT. 


THE  teacher  who  contracts  to  manage  a  public 
school  undertakes  to  do  something  more  than  merely 
to  prescribe  lessons  and  hear  recitations.  The 
teacher  assumes  to  govern  the  school,  to  maintain 
quiet  and  order  in  and  about  the  school-house  during 
school  hours,  and  to  compel  such  conduct  on  the 
part  of  the  pupils  as  shall  most  conduce  to  their 
own  welfare  and  that  of  the  school  as  a  whole. 

The  authority  to  command  this  would  be  nugatory 
if  the  teacher  were  not  armed  with  some  coercive 
power.  We  accordingly  find  the  law  to  be  that  a 
school-teacher  stands  in  loco  parentis  in  relation  to 
the  pupils  committed  to  his  charge,  while  they  are 
under  his  care,  so  far  as  to  enforce  obedience  to  his 
commands,  lawfully  given  in  his  capacity  of  school- 
master, and  he  may  therefore  enforce  them  by 
moderate  correction.1 

t  '.Hawkins,  P.  C.,  chap.  60,  sec.  23  ;  2  Wbarton  Am.  Cr. 
Law,  sec.  1259  and  note  thereto  ;  Commonwealth  «.  Seed,  3 
Pa.  Law  J.  Rep.,  78  ;  The  State  v.  Pendergrass,  2  Dev.  and 
Bat.  (Law),  865  ;  Anderson  v.  The  State,  3  Head  (Tenn.),  455  -, 


120  LAW   OF   PUBLIC   SCHOOLS. 

He  undoubtedly  has  the  right  to  chastise  his  pupils 
for  any  conduct  which  interferes  with  the  order  and 
discipline  of  the  school. 

If,  however,  the  teacher  administer  more  than  a 
reasonable  punishment,  he  becomes  criminally  liable, 
and  the  absence  of  actual  ill-will,  vindictive  feeling 
and  hatred,  will  not  excuse  him.  Malice  is  essential, 
but  it  may  be  inferred  from  the  circumstances.  Every 
one  is  presumed  to  intend  the  natural  and  necessary 
consequences  of  their  acts.  Therefore  the  intent  of 
the  assault  may  be  and  should  be  determined  from 
the  excessiveness  of  the  battery  which  immediately 
followed. 

The  teacher  must  exercise  a  reasonable  discretion, 
and  must  be  governed  as  to  the  manner  and  severity 
of  the  punishment  by  the  nature  of  the  offence,  the 
age,  size,  and  apparent  powers  of  endurance  of  the 
pupil,  and  it  is  a  question  for  the  jury  to  say  whether 
the  punishment  is  excessive.1 

State  ex  rd.  Burpee  «.  Burton,  45  Wis.,  150:  Johu  Morris* 
case,  I.  City  Hall  Recorder,  52-55  ;  Cooper  t.  McJunkin,  4 
Ind.,  290. 

1  Commonwealth  v.  Randall,  4  Gray  (Mass.),  36  ;  Cooper  t. 
McJunkin,  4  Ind.,  290  ;  Gardner  t>.  The  State,  4  lud.,  032  ; 
Fitzgerald  ».  Northcote,  4  F.  &  F.,  656,  and  note  p.  663  ;  An- 
derson v.  The  State,  8  Head  (Tenn.),  455  ;  Johnson  et  ux.  v. 
The  State,  2  Humph.,  283  ;  Common  wealth  v.  Blaker,  1 
Brewster  (Pa.),  311  ;  John  Morris'  cuje,  I.  City  H.ill  Re- 
corder, 52-55  ;  Lander  r.  Seavcr.  82  Vt.,  114  ;  Hathaway  r. 


CORPORAL    PUNISHMENT.  121 

A  schoolmaster  is  not  relieved  from  liability  for 
damages  for  the  punishment  of  a  pupil,  which  is 
manifestly  immoderate  and  unnecessary,  by  the  fact 
that  he  acted  in  good  faith  and  without  actual 
malevolence,  honestly  thinking  that  the  punishment 
was  proper  and  necessary  both  for  the  welfare  of 
the  pupil  and  the  discipline  of  the  school.1 

There  are  some  cases  which  hold,  that  in  order  to 
render  a  teacher  liable  criminally  the  circumstances 
must  show  strong  reason  to  believe  he  was  actuated 
by  bad,  malevolent  motives,  using  his  legal  authority 
for  the  gratification  of  a  mind  bent  on  mischief.* 

The  weight  of  carefully  considered  decisions  would 
perhaps  require  the  law  to  be  stated  thus  :  Malice  is 
necessary  to  make  a  teacher  liable  for  the  castigation 
of  a  pupil,  but  the  malice  may  be  presumed  from  the 
circumstances.  If  the  punishment  is  inflicted  with 
unreasonable  and  immoderate  violence  the  teacher  is 
liable,  although  no  wicked,  malicious  intent  existed. 
Where  the  teacher  acts  wantonly  for  the  gratification 

Rice,  19  Vt.,  102  ;  Redden  v.  Gates,  Supreme  Court  of  Iowa, 
October,  1879,  reported  in  Northwestern  Reporter,  vol.  ii. 
(N.  S ),  No.  11,  p.  1079. 

1  Lander  v.  Seaver,  32  Vt.,  114;  Commonwealth  v.  Randall, 
4  Gray  (Mass.),  36  ;  Anderson  v.  The  State,  3  Head  (Tenn.), 
455. 

•  Commonwealth  v.  Seed,  5  Pa.  L.  J.  Rep..  78;  Slate  v. 
Pender»rass,  2  Dev.  &  Bat.  (Law),  365. 


122  LAW   OF   PUBLIC  SCHOOLS. 

of  wicked,  malevolent  motives,  he  is  liable,  no  matter 
how  moderate  the  punishment  may  be. 

In  a  case  in  North  Carolina,  the  defendant,  a 
school-teacher,  was  indicted  for  an  assault  and  bat- 
tery. After  using  mild  measures  toward  a  little  gill 
of  six  or  seven  years  without  success/  the  teacher 
whipped  the  child  with  a  whip  to  such  an  extent  as 
to  leave  marks  which  passed  away  in  a  short  time. 
Two  marks  ulso  were  found  to  have  existed,  one  on 
the  arm  and  one  on  the  neck,  Avhich  appeared  as  if 
made  with  a  larger  instrument,  which  also  disap- 
peared in  a  few  days.  The  inferior  Court  instructed 
the  jury  that  "  as  the  child  was  of  tender  years,  if 
they  believed  the  defendant  had  whipped  her,  with 
either  a  switch  or  other  instrument,  so  as  to  produce 
the  marks  described  to  them,  she  was  guilty."  On 
appeal  the  Supreme  Court  held  that  this  instruction 
was  erroneous,  and  that,  under  the  circumstances,  the 
punishment  was  not  in  excess  of  the  teacher's 
authority.  The  opinion  of  the  Supreme  Court  was 

.  *  Commonwealth  v.  Seed,  5  Pa.  L.  J.  Hep.,  78  ;  Lander  r. 
Seaver,  32  Vt.,  114  ;  Commonwealth  r.  Randall,  4  Gray 
(Mass.),  30  ;  Anderson  t>.  The  State,  3  Head  (Tenn.).  455  ; 
Fit/.gcrald  v.  Northcotc,  4  F.  &  F.,  603  n.  ;  Johnson  ct  its.  r. 
The  State,  2  Humph.,  283  ;  Commonwealth  r.  Blaker,  1  P.rrw 
ster  (Pa.),  811  ;  Hathaway  r.  Rice,  19  Vt.,  102  ;  2  "\Vharton 
(  r  Law,  sec.  1259.  And  see  Starr  t?.  Litchfiuld,  40  Barb. 
•  X.  Y.),  543  ;  State  r.  Williams,  27  Vt.,  7.V5. 


CORPORAL    PUNISHMENT.  123 

delivered  by  Gaston,  J.,  who  said  :  "It  is  not  easy 
to  state,  with  precision,  the  power  which  the  law- 
grants  to  schoolmasters  and  teachers  with  respect  to 
the  correction  of  their  pupils.  It  is  analogous  to 
that  which  belongs  to  parents,  and  the  authority  of 
the  teacher  is  regarded  as  a  delegation  of  parental 
authority.  One  of  the  most  sacred  duties  of  parents 
is  to  train  up  and  qualify  their  children  for  becoming 
useful  and  virtuous  members  of  society.  This  duty 
cannot  be  effectually  performed  without  the  ability 
to  command  obedience,  to  control  stubbornness,  to 
quicken  diligence,  and  to  reform  bad  habits  ;  and  to 
enable  him  to  exercise  this  salutary  sway,  he  is  armed 
with  the  power  to  administer  moderate  correction 
when  lie  shall  believe  it  to  be  just  and  necessary. 

"  The  teacher  is  the  substitute  of  the  parent ;  he  is 
charged  in  part  with  the  performance  of  his  duties, 
and  in  the  exercise  of  these  delegated  powers  is  in- 
vested with  his  power.  The  law  has  not  undertaken 
to  prescribe  punishments  for  particular  offences,  but 
has  contented  itself  with  the  general  grant  of  the 
power  of  moderate  correction,  and  has  confided  the 
graduation  of  punishments,  within  the  limits  of  this 
grant,  to  the  discretion  of  the  teacher. 

"  The  line  which  separates  moderate  correction 
from  immoderate  punishment  can  only  be  ascertained 
by  reference  to  general  principles. 


124:  LAW    OF   PUBLIC   SCHOOLS. 

"  The  welfare  of  the  child  is  the  main  purpose  for 
which  ]»;iin  is  permitted  to  be  inflicted. 

"  Any  punishment,  therefore,  which  may  seriously 
endanger  life,  limbs,  or  health,  or  shall  disfigure  the 
child,  or  cause  any  other  permanent  injury,  may  be 
pronounced  in  itself  immoderate,  as  not  only  being 
unnecessary  for,  but  inconsistent  with,  the  purpose  for 
which  correction  is  authorized.  But  any  correction, 
however  severe,  which  produces  temporary  pain  only, 
and  no  permanent  ill,  cannot  be  so  pronounced,  since 
it  may  have  been  necessary  for  the  reformation  of 
the  child,  and  does  not  injuriously  affect  its  future 
welfare. 

"  We  hold,  therefore,  that  it  may  be  laid  down  as  a 
general  rule,  that  teachers  exceed  the  limits  of  their 
authority  when  they  cause  lasting  mischief,  but  act 
Avithin  the  limits  of  it  when  they  inflict  temporary 
pain  only.  When  the  correction  administered  is  not 
in  itself  immoderate,  and  therefore  beyond  the 
authority  of  the  teacher,  its  legality  or  illegality 
must  depend  entirely,  AVC  think,  on  the  quo  an  i inn 
with  Avhich  it  Avas  administered. 

"  Within  the  sphere  of  his  authority,  the  master  is 
the  judge  when  correction  is  required,  ami  of  the  de- 
gree of  correction  necessary  ;  and,  like  all  others  in- 
trusted Avith  a  discretion,  he  cannot  be  made  penally 
responsible  for  error  of  judgment,  but  only  for  Avick- 
cdiu-ss  of  purpose.  The  best  and  wisest  of  mortals 


CORPORAL    PUNISHMENT.  125 

arc  weak  and  erring  creatures,  and,  in  the  exercise  of 
functions  in  which  their  judgment  is  to  be  the  guide, 
cannot  be  rightfully  required  to  engage  for  more 
than  honesty  of  purpose  and  diligence  of  execution. 
His  judgment  must  be  presumed  to  be  correct  be- 
cause he  is  the  judge,  and  also  because  of  the  diffi- 
culty of  proving  the  offence,  or  accumulation  of 
'offences,  that  called  for  correction  ;  of  showing  the 
peculiar  temperament,  disposition,  and  habits  of  the 
individual  corrected  ;  and  of  exhibiting  the  various 
milder  means  that  may  have  been  ineffectually  used 
before  correction  was  resorted  to. 

"  But  the  master  may  be  punishable  when  he  does 
not  transcend  the  powers  granted,  if  he  grossly  abuse 
them.  If  he  use  his  authority  as  a  cover  for  malice, 
and,  under  the,  pretext  of  administering  correction, 
gratify  his  own  passions,  the  mask  of  the  judge  shall 
be  taken  off,  and  he  Avill  stand  amenable  to  justice 
as  an  individual  not  invested  with  judicial  power."  1 

In  an  Iowa  case  it  was  held  that  "  any  punishment 
with  a  rod  which  leaves  marks  or  welts  on  the  person 

1  The  State  v.  Pendergrass,  SDev.  &Bat.,  365.  This  case  is 
one  which  perhaps  states  the  extent  of  the  teacher's  authority 
as  fully  as  any  extant.  The  rule  making  the  teacher's  liability 
rest  upon  an  actual  wicked  motive,  although  adhered  to  in  the 
case  of  Commonwealth  v.  Seed,  5  Pa.  Law  J.  Rep.,  78,  is  too 
strong — the  weight  of  authority  warrants  only  the  rule  that 
malice  is  a  necessary  ingredient  which  may  be  expressly 
shown,  or  inferred  from  the  circumstances. 


12(5  LAW   OF  PUBLIC  SCHOOLS. 

of  the  pupil  for  two  months  afterward,  or  mnch  less 
time,  is  immoderate  and  excessive,  and  the  court 
would  have  been  justified  in  so  instructing  the 
jury."  '  In  the  same  case  the  following  instruc- 
tion was  held  not  erroneous  :  "  The  legal  objects  and 
purposes  of  punishment  in  schools  are  like  the  ob- 
jects and  purposes  of  the  State  in  punishing  the  cit- 
izen. They  are  threefold  :  First,  the  reformation  and" 
the  highest  good  of  the  pupil  ;  second,  the  enforce- 
ment and  maintenance  of  correct  discipline  in 
school  ;  and  third,  as  an  example  to  like  evil-doers. 
And  in  no  case  can  the  punishment  be  justifiable  un- 
less it  is  inflicted  for  some  definite  offence  or  offences 
which  the  pupil  has  committed,  and  the  pupil  is 
given  to  understand  he  or  she  is  being  punished  for. 
And  if  you  find  from  the  evidence  that  the  punish- 
ment in  this  case  was  inflicted  upon  the  prosecutrix 
without  her  knowing  what  she  was  being  punished 
for,  then  the  punishment  was  wrongful  on  the  part 
of  the  defendant.  •  Punishment  inflicted  when  the 
reason  of  it  is  unknown  to  the  punished,  is  subver- 
sive and  not  promotivo  of  the  true  objects  of  punish- 
ment, and  cannot  bo  justified/'  In  sustaining  this 
instruction  the  Supreme  Court  says  :  "  The  object  of 
all  punishment  must  be  to  accomplish  the  purposes 
specified  in  the  instruction. 

1  Per  Secvers.  J.,  in  State  of  Iowa  r.  Mi/ner,  50  Iowa,  14~>. 


CORPORAL    PUNISHMENT.  127 

"  The  definition  is  an  admirable  one,  and  cannot, 
we  think,  be  improved. 

"  If  the  pupil  does  not  know  why  the  punishment 
was  inflicted,  reformation  cannot  be  expected  there- 
from. Just  the  contrary  result  might  be  expected. 
Counsel  mistake  the  meaning  of  the  instruction.  It 
does  not  require  the  teacher  to  state  to  the  pupil  in 
•clear  and  distinct  terms  the  offence  for  which  he  or 
she  is  being  punished.  It  only  requires  that  the 
pupil,  as  a  reasonable  being,  should  understand  from 
what  occurred  for  what  the  punishment  is  inflicted." 

The  teacher  must  often  act  promptly  to  maintain 
order,  without  waiting  for  the  views  of  the  directors 
or  trustees. 

Where  a  pupil,  in  school  hours,  places  himself  in 
the  desk  of  the  instructor,  and  refuses  to  leave  it  at 
the  request  of  the  master,  such  pupil  may  lawfully 
be  removed  by  the  master  ;  and  for  that  purpose  he 
may  immediately  use  such  force,  and  call  to  his 
assistance  such  aid  from  any  other  person,  as  may 
be  necessary  to  accomplish  the  object,  without  the 
direction  or  knowledge  of  the  superintending  com- 
mittee ;  and  the  case  is  the  same  if  the  person  is  not 
a  pupil,  but  one  having  no  right  in  the  school.4 

When  the  relation  of  schoolmaster  and  pupil,  or 
any  similar  relation,  is  established  in  defence  of  a 

1  The  State  of  Iowa  v.  Mizner,  50  Iowa,  145. 
9  Stevens  v.  Fassett,  27  Me.,  260. 


128  LAW   OF   PUBLIC  SCHOOLS. 

prosecution  for  assault  and  battery,  the  legal  pre- 
sumption is  that  the  chastisement  was  proper,  and 
this,  to  warrant  a  conviction,  must  be  rebutted  by 
showing  that  it  was  excessive  or  without  cause.1 

Where  the  relation  of  schoolmaster  and  pupil  or 
parent  and  child  exists,  and  the  chastisement  is  not 
without  cause,  it  is  not  the  infliction  of  punishment 
which  constitutes  the  offence,  but  the  excess  ;*  and 
what  shall  be  deemed  excessive  is  not  a  question  of 
law  for  the  court,  but  is  a  question  of  f;ict  to  be  de- 
termined by  the  jury. 

In  a  criminal  prosecution  the  offence  must,  of 
course,  be  proven  beyond  a  reasonable  doubt,  and  if 
there  is  any  reasonable  doubt  that  punishment  :id- 
ministered  by  a  teacher  was  excessive,  the  tearluT 
should  have  the  benefit  of  the  doubt. 

It  has  also  been  held  in  a  civil  suit  against  the 
teacher,  that  if  there  is  any  reasonable  doubt  that 
the  punishment  was  excessive,  the  teacher  should 
have  the  benefit  of  it.* 

1  Anderson  v.  The  State,  3  Head  (Tenn.),  455  ;  The  State  r. 
IVixlcrgrass,  2  Dev.  &  Bat.  (Law),  365  ;  Commonwealth  t. 
Randall,  4  Gray  (Mass.),  36. 

1  Commonwealth  r.  liandall,  4  Gray  (Mass.),  30  ;  Johnson  tt 
nx.  v.  The  State,  2  Humph.,  2ftJ  ;  Anderson  ».  The  Si.-iic, 
!i  Head  (Tenn.),  455  ;  Lander  r.  Seaver,  ;J2  Vt.,  114  ;  Hatha- 
way ».  Rice,  19  Vt.,  102  ;  Commonwealth  r.  Blakcr,  1  Brew 
ster,  311. 

8  Lander  v.  Seaver,  32  Vt.,  114. 


CORPORAL    PUNISHMENT.  ]  29 

So  far  as  the  question  of  jurisdiction  is  concerned, 
while  there  is  a  dearth  of  judicial  decisions  as  to  the 
exact  limits  of  the  teacher's  jurisdiction,  yet  the 
spirit  of  the  decisions  is  that  the  authority  of  the 
schoolmaster  extends  over  the  person  of  the  pupil 
from  the  time  the  pupil  arrives  on  the  school 
premises  until  it  leaves,  and  over  the  school 
premises  both  in  and  out  of  school  hours.  And  also 
that  for  conduct  out  of  school  hours  and  off  the 
school  premises,  in  violation  of  a  rule  of  the  school, 
and  which  conduct  has  a  direct  and  immediate 
tendency  to  injure  the  school  or  its  discipline,  the 
authority  attaches  and  the  pupil  may  be  punished 
tlierefor.1  But  whatever  punishment  is  to  be  ad- 
ministered must  be  inflicted  on  the  school  premises. 

Although  a  teacher  has  in  general  no  right  to  chas- 
tise a  pupil  for  misconduct  committed  out  of  school 
after  the  dismissal  of  school  for  the  day,  and  the  re- 
turn of  the  pupil  to  his  home,  yet  he  may,  on  the 
pupil's  return  to  school,  punish  him  for  any  mis- 
behavior, though  committed  out  of  school,  which  has 
a  direct  and  immediate  tendency  to  injure  the  school 
or  subvert  the  teacher's  authority.  This  was  held  in 
a  case  in  which  the  pupil,  a  boy  eleven  years  old,  an 
hour  and  a  half  after  the  school  had  closed  for  the 
day,  and  when  he  was  at  his  home,  and  engaged  in 

1  Lander  v.  Scavcr,  32  Vt.,  114;  Ilurd  on  Habeas  Corpus, 
p.  50. 


130  LAW   OF   PUBLIC  SCHOOLS. 

his  father's  sen  ice,  used  saucy  and  disrespectful  lan- 
guage to  the  teacher  in  the  presence  of  some  of  his 
fellow-pupils.  For  this  the  teacher  whipped  the  boy 
next  morning  on  his  return  to  school. 

The  court,  sitting  in  full  bench,  and  upon  argu- 
ment and  careful  consideration,  sustained  the  action 
of  the  teacher,  and  in  doing  so  used  the  following 
language  :  "  But  where  the  offence  has  a  direct  ten- 
dency to  injure  the  school  and  bring  the  master's 
authority  into  contempt,  as  in  this  case,  when  done 
in  the  presence  of  other  scholars  and  of  the  master, 
and  with  the  design  to  insult  him,  we  think  he  has  a 
right  to  punish  the  scholar  if  he  comes  to  school 
again."  • 

There  was  no  prescribed  rule  in  that  respect,  and 
the,court  passed  directly  upon  the  teacher's  right  to 
maintain  respect  for  his  authority,  even  as  against 
nets  done  out  of  school  which  are  directed  against  his 
authority.1 

If  a  person  who  has  attained  majority  voluntarily 
attends  school,  creating  the  relation  of  teacher  and 
pupil,  he  thereby  waives  any  privilege  of  age,  and 
subjects  himself  to  like  discipline  with  those  who  are 
within  the  school  age.  Such  pupil  may  bo  punished 

1  Lander  t>.  Seaver,  82  Vt ,  114;  Burdick  v.  Balrcock,  .31 
Iowa,  502.  But  as  to  the  limit,  see  Murphy  r.  Board  of  Direc- 
tors, etc.,  30  Iowa,  4'29  ;  Drill  t>.  Snodgrass,  60  Mo.,  286. 


COUPOHAL    PUNISHMENT.  131 

for  refractory  conduct,  provided  the  punishment  be 
reasonable  under  the  circumstances.1 

It  has  been  held  in  Wisconsin  that  a  teacher  was 
not  authorized  to  inflict  corporal  punishment  upon  a 
child  for  the  purpose  of  compelling  it  to  pursue  a 
study  which  it  was  forbidden  by  its  father  to  pursue. 

In  this  caso,  however,  the  teacher  assumed  the 
right  to  control  the  child's  studies,  and  there  was  no 
rule  of  the  school  board  requiring  the  pupil  to  pur- 
sue the  study  which  his  father  had  forbidden.2  It  is 
expressly  stated  in  the  opinion,  that  this  decision  is 
not  intended  to  interfere  with  the  duties  of  the 
school  board  in  making  and  enforcing  proper  and 
reasonable  rules. 

If  the  rules  of  a  school  prescribe  certain  studies, 
and  require  attendance  at  particular  hours.,  and  the 
parents  may  not  excuse  therefrom,  yet  the  teacher 
should  not  in  such  ease  resort  to  whipping  the  pupil 
for  failure  to  pursue  the  studies  or  attend  at  the 
hours  fixed  by  the  rules.  The  remedy  in  such  case 
is  expulsion  from  the  school.3 

In  New  Jersey  corporal  punishment  is  forbidden 
by  statute.4 

1  The  State  v.  Mizner,  45  Iowa,  248  ;  Stevens  v.  Fassclt,  27 
Me.,  2G6,  287. 
8  Morrow  v.  Wood,  35  Wis. ,  59. 

3  The  State  of  Iowa  v.  Mizner,  50  Iowa,  145. 

4  Rev.  Statutes  of  New  Jersey,  p.  1087,  sec.  98. 


132  LAW    OF   PUBLIC  SCHOOLS. 

Ill  England  it  has  been  held,  that  where  a  school- 
master wrote  to  a  parent  and  obtained  the  parent's 
consent  to  beat  the  pupil  severely  to  subdue  his 
alleged  obstinacy,  and  the  teacher  beat  the  boy  for 
two  hours  and  a  half  secretly  in  the  night,  and  with 
a  thick  stick,  until  the  pupil  died  from  the  effects 
of  the  beating,  such  teacher  was  guilty  of  man- 
slaughter only,  no  malice  having  been  proved.1 

R.  t>.  Elopley,  2  F.  &  F.,  203. 


TABLE    OF   OASES    CITED. 


,  The,  68. 

Anderson  v.  The  State,  119,  120,  121, 122,  128. 
Angell  v.  McClellan,  68. 
Apgar  v.  Trustees,  83. 
Appeal  of  Barnes,  60. 
Appointment  of  Viewers,  32. 
Armand  v.  Dumas,  24,  30. 
Armstrong  v.  Treasurer  of  Athens  Co. ,  24. 
Athearn  v.  The  Independent  School  District,  etc.,  74. 
Attorney-General  v.  Ely,  39. 
Augustin  v.  Eggleston,  36. 

B 

Bailey  v.  Ewart,  46. 

Baker  v.  School  District,  70,  85. 

Baker  v.  Chambles,  53. 

Bank  of  the  Republic  v.  Hamilton,  24. 

Batnhart  v.  Bodenhammer,  73. 

Barr  v.  Deniston,  70,  72,  73. 

Bartlett  v.  Kinsley,  63,  65. 

Bassett  v.  Fish,  54. 

Bays  v.  The  State,  47,  81,  86. 

Bayliss  v.  Pearson,  53. 

Bellmeyer  v.  Independent  District  of  Marshalltown,  52,  53 

Bigelow  v.  Randolph,  54. 

Blanchard  v.  School  District,  71. 

Boardman  v.  Hayne  et  al.,  50,  53. 

Board  of  Trustees  v.  Misenheimer,  56. 


134  TABLE   OF   CASES   (I'll  I». 

Board  of  Education  v.  Minor,  89,  106. 

Botkin  v.  Osborne,  70,  72,  84,  85. 

Boyd  «.  Blaisdell,  117. 

Brings  et  al.  v.  Johnson  County,  18, 22. 

Bump  v.  Smith,  1C. 

Burdick  v.  Babcock,  89,  94.  98,  110,  130. 

Burton  v.  Fulton,  47,  48. 


Carpenter  v.  Ely,  38. 
Carson  v.  McPhetridge,  38. 
Cascade  r.  Lewis,  67,  83. 
Casey  v.  Baldridge,  70,  72,  85. 
Chapin  v.  Hill,  58. 
Chase  v.  Stephenson,  91. 
Chrgaray  v.  Mayor,  etc.,  24,  26,  29. 
Chegaray  v.  Jenkins,  24,  29. 
Cincinnati  College  v.  The  State,  24,  25. 
Clark  v.  Board  of  Directors,  etc.,  92. 
Clark  v.  Great  Harrington,  66. 
Cleland  v.  Porter,  36. 
Clinton  School  District's  Appeal,  48. 
Coger  v.  Northwestern  Packet  Co.,  92. 
Commissioners  v.  Brackenridge,  24. 
Commonwealth  v.  Cluley,  37. 

t>.  Blaker,  120,  122,  128 

t.  Dedham.  18.  19. 

t>.  Randall,  120,  121,  122.  128. 

«.  Seed,  118.  119,  120,  121,  123,  125. 

«.  Sheffield,  18,  19. 
Conover  v.  Cooper,  68. 
Contested  Election  (Pa.),  38. 

C(x>k  v.  Independent  Dintrict  of  North  McGregor,  74. 
Cooper  v.  McJunkin,  119,  120. 
Cory  v.  Carter,  92. 
Cotton  t>.  Phillips,  57. 
Crawfordsville  t.  Hays,  47,  81,  83.  86. 
Crosby  v.  School  District,  71,  88. 


TABLE   OF    CASES    CITED.  135 

Cross  v.  The  District  Township,  etc.,  53,  83,  84. 

Curtis'  Adm'rs  v.  Whipple,  15. 

Cashing  v.  Inhabitants  of  Newburyport,  18. 

D 

Dallas  v.  Fosdick,  92. 

Davis  v.  Boget  et  al.,  59. 

Delaware,  The,  25. 

Denniston  t>.  School  District,  67. 

Detroit,  etc.,  v.  Mayor,  25. 

Dewey  v.  Union  School  District,  82 

Dickey  v.  Hurlburt,  35. 

District  Township  of  Bluff  Creek  v.  Ilardinbrook,  54.  - 

"  "  Hesper  v.  Independent  District,  etc.,  35. 

"  "  Taylor  v.  Morton,  55. 

"  Union  v.  Smith,  55. 

Donahoe  v.  Richards,  47,  48,  105,  117. 
Donahoe  prochein  ami  v.  Richards  et  al.,  89, 117. 
Dore  D.  Billings,  72,  85,  86. 
Dorton  v.  Hearn,  61.^ 

Dove  v.  Independent  School  District,  etc.,  92. 
Doyan  v.  School  District,  85. 
Drittt).  Snodgrass,  116,  118,  130. 

E 

Eastman  v.  Rapids,  78. 

Ewing  v.  School  District,  etc.,  84,  87. 


Ferguson  v.  True  and  Walker,  50,  56,  70. 

Ferriter  et  al.  v.  Tyler  et  al.,  89,  98,  101. 

Finch  v.  Cleveland,  70,  77. 

Finch  v.  The  Board  of  Education,  54. 

Fitzgerald  v.  Northcote,  120, 122. 

Fletcher  v.  Lincolnville,  65. 

Foster  v.  Lane,  33. 


13G  TABLE   OF   CASES   CITED. 

Q 

Gardner  ».  The  State,  120. 
Galbraith  v.  Black,  68. 
George  v.  School  District,  71,  88. 
Gibson  v.  School  District,  etc.,  51. 
Gillis  r.  Space.  67. 
Oilman  c.  Biissett,  85. 
Godfrey  v.  Hays,  68. 
Goodrich  v.  Fairfax,  70,  72,  85. 
Grant  r.  Fancher,  67. 
Greenbanks  v.  Boutwt- 11,  15. 
Guernsey  v.  Pitkin,  90,  91,  111. 
Gulick  v.  New,  38. 

H 

Hannibal,  etc.,  R.  R.  Co.  v  Shacklett,  24. 

Harris  v.  School  District,  33. 

Harrison  v.  Good,  62. 

Harrison  Township  v.  Conrad,  70,  72,  85. 

Hart  c.  Plum,  24. 

Harvey  v.  Irvin,  53. 

Hathaway  v.  Rice,  120,  122.  128. 

Hewitt  v.  Board  of  Education,  51. 

Holden  v.  School  District,  87. 

llornbeck  ».  Westerbrook,  33. 

Horton  v.  Garrison  and  Hoffman.  67. 

Howard  v.  Bamford,  83. 

Hughes  P.  Goddell,  115. 


Indianapolis  v.  McLean,  24,  29. 
Indianapolis  v.  Sturtevant,  30. 

J 

Jackson  v.  Cory,  33. 
Jackson  v.  Hampden,  70. 
Jenkins  v.  Andover,  14,  18. 

.li-nks  r.  S,  h.wl  D>lr; 


TABLE   OF   CASES   CITED.  137 


Jenness  v.  School  District  No.  31,  70. 

Jenney  v.  Alden,  08. 

Jewell  V-.  Abington,  88. 

John  Morris'  Case,  119,  120. 

Johnson  et  ux.  v.  The  State,  120,  122,  128. 

Jones  v.  Nebraska  City,  7G. 

Jones  v.  School  District,  74,  84. 

Judkins  v.  Hill,  37. 

Juker  v  Commonwealth,  37. 


K 


Keller  v.  Chapman,  36. 
Kendrick  v.  Farquhar,  24,  28. 
Knowles  v.  Boston,  76. 


Lander  v.  Seaver,  90,  116,  120,  121, 122,  128,  129,  130. 

Lane  v.  School  District,  49. 

Lanier  v.  Gallatas,  36. 

Lindsey  v.  Marshall,  5o. 

Locust  Ward  Election,  36. 

Long  v.  Fuller,  32. 

Lord  v.  Poor,  68. 

Love  v.  Moore,  47. 

Lyon  v.  Adamson,  53. 

M 

Mann  v.  The  Independent  School  District,  etc.,  75. 

Manning  v.  District  Township  of  Van  Bureu,  51. 

Marshall  v.  Donovan,  15. 

McCormick  v.  Burt,  108. 

McCutchen  v.  Windsor,  47,  76. 

McKinney  v.  O'Connor,  36. 

McLoud  v.  Selby,  66. 

Merrick  and  others  v.  Inhabitants  of  Amherst  and  others,  18. 

Merritt  v.  Farris,  35,  64. 

Methodist  Church  v.  Ellis,  24. 

Miami  County  v.  Brackeuridge,  24. 


138  TABLE   OF   CASES   CITKJ). 

Monachal!  v.  School  District  No.  1,  68. 
Monticello  Bank  v.  District  Township,  etc.,  51. 
Moore  f.  Beattie,  63. 
Morris' Case,  119,  120. 
Morrison  v.  McFarland,  47,  81. 
Morrow  v.  Wood,  89,  112,  113,  117,  131. 
Moultenborough  v.  Tuttle,  88. 
Murphy  v.  Board  of  Directors,  etc.,  130. 

N 

Nason  v.  School  District  No.  14,  87. 

Nazareth  v.  Commonwealth,  25. 

Neville  v.  School  Directors,  73,  75,  81,  87. 

Newell  T.  School  Directors,  52. 

New  Orleans  c.  St.  Patrick's  Hall  Association,  80. 

"          "        v.  Lafayette  Ins.  Co.,  30. 
Nichols  v.  The  School  Directors,  etc.,  60. 
Nightingale  v.  Withington,  6b. 
Nixon  v.  Spencer,  68. 
Northwestern  University  v.  The  People,  26. 

0 

Offut  v.  Bourgeois,  84. 
Ohio  v  Treasurer  of  Liberty  Township,  50. 
O'Neal  v.  School  ('oniiuij-cioners,  67. 
Opinion  of  the  Judge*  (Me.),  15,  87. 


Pace  v.  Jefferson  County,  25,  29,  80. 
Pacific  H.  It.  Co.  v.  Cass  County,  24. 
Page  v.  Township  Board,  etc.,  49. 
Paul  v.  School  District,  71. 
IVck  T.  Smith,  50,  114,  115. 
Peck  ham  c.  School  District,  32. 
Peers  c.  Board  of  Education,  47,  49. 
Pitfple  v.  Board  of  Education,  14,  92,  94. 


TABLE    OF    CASES   CITED,  139 


People  v.  Cicott,  38,  39,  40. 

"       ».  Clute,  37. 

"      v.  Cook,  36,  39. 
v.  Easton,  89,  92. 

"       v.  Ferguson,  39. 

"       v.  Holden,  38. 

"       v.  Kennedy,  39. 

"       v.  McManus,  39. 

"       v.  Matteson,  39. 

"       v.  May  worm,  39. 

"       v.  Pease,  39. 

"       v.  Roper,  24. 

"       v.  Seaman,  39. 
Perkins  v.  Wolf  et  al,  45,  73. 
Person  v.  Chase,  68. 
Philadelphia  Association  v.  Wood,  15. 
Piatt  «.  The  People,  36. 
Pickett  v.  School  District,  51,  C9. 
Pierce  v.  Cambridge,  28. 
Platt  v.  Rice,  24. 
Probasco  v.  Moundville,  24,  25. 
Puterbaugh  v.  Township  Board,  etc., 67,  83,  84. 

R 

R.  v.  Hopley,  132. 
Redden  v.  Gates,  121. 
Richards  v.  Raymond,  18. 
Richardson  v.  School  District,  77,  88. 
Robinson  v.  Dodge,  16. 

v.  The  State,  70. 
Roe  v.  Deming,  118. 
Rolfe  v.  Cooper,  83,  86. 
Ruleson  v.  Post,  20,  112,  113. 


Saunders  v.  Haynes,  37. 

Schofield  v.  Eighth  School  District,  60,  62. 


140          .  TABLK   OK    CASES   CITED. 

School  Commissioners  v.  Aiken,  66, 
School  Direciors  v.  Hart,  67. 

"  "          D.  Hudson,  75. 

School  District  No.  8  v.  Arnold,  01. 
School  District  v.  Athorton,  6.1. 

v.  Blukesh-e.  63,  64,  65. 

"  "         o.  Brngdon,  91. 

"  "         v.  Colvin,  76. 

"  "        v.  Macloon,  67. 

"  "         v.  Slough,  52. 

"  "         v.  Thompson,  67. 

Scott  v.  School  District  No.  2  in  Fairfax,  114. 
Sewell  v.  Board  of  Education,  89,  111,  117. 
Seymour  v.  Hartford,  24. 
Sheets  v.  Seldeu,  79. 

Sheffield  School  Township  v.  Andreas.  53. 
Sheldon  v.  Centre  School  District,  15. 
Sherman  ».  Charlestown,  114. 
Shoudy  v.  School  Di rectors,  49. 
Silvers.  Cumminjfs,  67. 
Sisters  of  Charity  v.  Detroit,  31. 
Slaughter  House  Cases,  92. 
Smith,  v.  Curry,  72,  84,  85. 

"      v.  District  Township  of  Knox,  47. 

"       v.  Directors,  etc  ,  92. 
Spear  v.  Cumminjrs,  89,  114,  117. 
Spencer  v.  Joint  School  District,  etc.,  61,  62. 
Spiller  v  Woburn,  106. 
Sprague  v.  Norway,  36. 
Spring  v.  Wright,  50. 
Starr  v.  Litchfield,  122. 
State  v.  Hrrmond,  14. 

"     v.  Burton.  00,  01,  117,  110. 

"     v.  Boa],  37. 

"     v.  Cincinnati,  H'J. 

"    <c.  Elizabeth,  25. 

"    v.  (Hies,  37. 

"    v.  Hulin,  66. 


TABLE   OF   CASES  CITED. 

State  v.  Lewis,  64. 

"    v.  Leighton,  115. 

"    «.  Mason,  36. 

"    v.  Mizner,  126, 127, 131. 

"    v.  McCann,  92. 

"    v.  Parker,  24. 

"    v.  Pendergrass,  119, 121,  125, 128. 

"     v.  Powell,  64. 

"    v.  Ross,  24,  25,  27,  29. 

"    «.  Smith,  38. 

"     v.  Southmeyer,  92. 

"     v.  The  Judges,  etc.,  37,  38,  40. 

"     v.  Williams,  114,  122. 

"    v.  Wilson,  24. 
Steele  v.  Thatcher,  68. 
Stepheuson  ».  Hall  et  al.,  114,  117. 
Stevens  v.  Fassett,  71,  127,  131. 
Stevenson  v.  School  Directors,  67,  85,  86. 
Stewart  v.  Southard,  92. 
Stone  v.  Pulsipher,  68. 
Stuart  v.  School  District,  etc.,  16,  17,  50. 
Stuckey  v.  Churchman,  118. 
St.  Mary's  College  v.  Crowl,  24. 
St.  Peter's  Church  v.  Board  of  Commissioner?,  28. 
Sublett  v.  Bedwell,  37. 
Sudbury  v.  Stearns,  37. 

T 

Talkington  v.  Turner,  39. 

Taylor  v.  District  Township  of  Otter  Creek,  51. 

"      v.  Township  of  Wayne,  51,  52. 
Templin  &  Sons  v.  District  Township  of  Fremont,  49. 
The  ^tna,  68. 
The  Delaware,  25. 

The  Northwestern  University  v.  The  People,  26. 
The  State  v.  Woolem,  36. 
Third  School  District,  etc.,  v.  Gibbs,  37. 
Thompson  v.  Beaver,  102. 


142  TABLE  OF  CASES  CITED. 

Townsbend  «.  llagan  et  al. ,  59. 

Township  Board  of  Education  r.  Hackman,  32. 

Township  of  Soldier  v.  Barrett,  115. 

Tnnubull  v.  White,  16.  * 

Trustees,  etc.,  v.  Osborne,  58. 

"          "     D.  Tatman,  66. 

Trustees  of  Griswold  College  o.  The  State  of  Iowa,  24,  28. 
Trustees  of  School,  etc.,  v.  The  People  ex  rel.  Van  Allen,  91, 

112,  113. 


Vail  r>.  Beach,  24,  28. 

w 

Ward  v.  Flood.  90,  91.  92.  112. 

"      v.  School  District  No.  15,  55,  56. 
Washburn  v.  Commissioners,  25. 
Washington  University  v.  House,  24. 
Weeks  v.  BatcheMer,  63. 
Weir  a.  Diy,  58. 
Welch  v.  Brown,  70,  72,  85. 
Wells  v.  School  District,  88. 
Wesleyan  Academy  v.  Wilbraham,  26. 
Wharton  v.  School  Directors,  67. 
Wheeler  ».  Burrow,  91. 
Whipley  v.  McKune,  36. 
Whiting  ®.  Earle,  68. 
Whitmore  v.  Hogan,  66. 
Williams  t).  School  District,  15,  32. 
Wolcott  t>.  Rickey  et  al.,  68. 
Wolf  v.  Independent  School  District,  etc.,  51. 
Wood  v.  Inhabitants  of  Mfdfield,  76. 
Wymau  v.  St.  Louis,  24,  29. 


INDEX. 


ARKANSAS.  ' 

School  month,  length  of,  in,  79. 
ARIZONA. 

School  month,  length  of,  in,  79. 
BANCROFT,  MR. 

Remarks  of,  on  the  measures  establishing  public  schools 

in  New  England,  19. 
BENTHAM,  JEREMY. 

On  origin  of  property,  12. 
BROUGHAM,  LORD. 

Famous  speech,  "  The  Schoolmaster  is  Abroad!"  13. 
CALIFORNIA. 

School  month,  length  of,  in,  79. 
CERTIFICATE. 

Teacher's  certificate  of  qualifications,  70-73. 

(See  TEACHERS.) 
CONDEMNATION  OF  SITES  FOR  SCHOOL-HOUSES. 

(See  SITES  FOR  SCHOOL-HOUSES.) 
CONNECTICUT. 

School-houses  may  be  used  temporarily  for  other  than 
school  purposes  in,  60,  n.  2,  62. 

CORPORAL  PUNISHMENT. 

Teacher  may  enforce  reasonable  commands  by,  119. 

Extent  of  teacher's  authority,  1^0. 

Teacher's  liability  for  inflicting,  120-125,  and  125,  n.  1. 

Malice  essential,  but  may  be  inferred,  120. 

Leaving  marks  for  two  months,  125,  126, 


144  INDEX. 

CORPORAL  PUNISHMENT. — Continued. 
Objects  of  punishment  stated,  126. 
Whether  excessive  is  for  the  jury  to  decide,  128. 
Teacher  has  benefit  of  a  doubt,  128. 
Extent  of  teacher's  jurisdiction,  129. 
Only  to  be  inflicted  on  school  premises,  129. 
For  conduct  out  of  school,  129,  130. 
Of  pupils  who  have  attained  majority,  130. 
For  failure  to  pursue  studies,  131. 
Forbidden  in  New  Jersey,  131. 

COUNTY  SUPERINTENDENT. 

Duties  of,  44,  45. 

Not,  as  such,  entitled  to  injunction  to  restrain  teacher 
from  teaching  without  certificate,  45.  72. 

Discretion  of,  will  not  be  controlled  by  mandamus,  45. 

Not  liable  for  errors  of  judgment  in  discharge  of  duties 
judicial  in  their  character,  46. 

What  must  be  shown  in  action  on  the  case  against,  for  il- 
legally revoking  certificate,  46. 

DIRECTORS,  TRUSTEES,  ETC. 

Their  powers  and  duties,  47-50. 

Duties  of,  respecting  the  discharge  of  teachers,  47. 

Liable  only  for  malice  and  wantonness,  47,  48. 

Corporate  name  of,  may  be  substituted  in  a  suit,  48. 

Suit  for  a  district  must  be  in  its  corporate  capacity  and  by 

its  proper  officers,  49. 

Verbal  contract  of,  employing  an  attorney,  is  valid,  49. 
In  Iowa,  president  of  a  district  has  no  authority  to  employ 

counsel  unless  in  a  lawsuit,  49. 
Have  no  right  to  make  acceptances  of  orders,  or  bills  of 

exchange,  unless  authorized  by  statute,  49. 
Individual  members  acting  separately  cannot  contract  a 

debt  for  the  corporation,  50. 
Not  liable  to  holder  of  school  order  for  constructive  fraud 

in  issuing  an  order  they  had  no  right  to  issue,  50. 
In  Kentucky  liable  to  teacher  for  salary  where  they  fail  to 

raise  school  fuuds,  50. 


INDEX.  145 

DIRECTORS,  TRUSTEES,  ETC. — Continued. 

Where  empowered  to  grade  schools,  have  power  to  appoint 
superintendent  thereof,  50. 

Their  contracts,  51,  52. 

Their  liability  for  negligence,  53,  54. 

Whether  individually  liable  for  breaking  teacher's  con- 
tract, 84. 

EDUCATION. 

(See  PUBLIC  SCHOOLS  ;  HIGH  SCHOOLS  ;  NORMAL  SCHOOLS  ; 
BANCROFT  ;    BROUGHAM  ;    TAXATION    FOR    PUBLIC 
SCHOOLS.) 
ELECTIONS. 

Time  and  place  of,  35,  36. 

Conduct  of,  and  irregularities  therein,  36,  37. 

Sufficiency  of  the  election,  37. 

Imperfect  ballots,  38-40.  • 

EMPLOYMENT  OF  SCHOOL-TEACHERS. 
(See  TEACHERS.) 

EXEMPTION  OF  PROPERTY  USED  FOR  EDUCATIONAL  PURPOSES. 

Rules  of  construction,  23-25. 

Taxation  the  rule,  exemption  the  exception,  23. 

Exemptions  strictly  construed,  24. 

Construed  as  direction  not  to  assess  rather  than  as  a  con- 
tract, 24. 

When  exemption  is  part  of  a  charter  from  a  State  to  a  cor- 
poration it  is  protected  by  U.  S.  Constitution,  25. 

Whether  property  must  be  actually  used  for  educational 
purposes,  25,  26. 

It  is  generally  necessary  that  the  property  should  be  actu- 
ally used  as  such,  25. 

Case  in  Supreme  Court  of  United  States,  26. 

Case  under  Massachusetts  statute,  26. 

Force  of  the  words  "  erected  for  the  use  of,"  26. 

Residences  of  professors,  etc.,  27,  28. 

Property  of  private  schools  and  of  private  persons,  29-31. 

Exemptions  do  not  usually  include  private  schools,  29. 

Building  in  part  used  for  other  purposes  is  not  exempt,  29. 


146  INDEX. 

EXEMPTION  OF  PROPERTY. — Continued. 

A  private  school  is  not  sucb  a  " school"  or  "seminary  of 

learning"  as  is  exempt  in  New  York,  29. 
Grammar  school  rented  by  college  is  not  exempt  as  part  of 

the  college,  29. 

Private  grammar  school  not  exempt,  29. 
To  be  a  "  public  school-house"  the  building  must  be  under 

the  immediate  control  of  the  school  district,  30. 
Private  academy  in  Indiana,  30. 
In  Louisiana  school-house  not  exempt  unless  its  ownei 

keeps  the  school,  30. 
In  Michigan  it  is  held  that  property  "  belongs  to"  one  hav. 

ing  exclusive  right  of  possession,  while  such  right  ex. 

ists,  30. 

HARVARD  COLLEGE. 

Founded  in  1630,  18,  19. 

HIGH  SCHOOLS. 

Taxation  for,  timely  and  constitutional,  16-22. 

Founded  in  the  colonies  in  1647, 19. 

Town  of  Dedham  indicted  in  1817  for  failure  to  maintain  n 

high  school,  19. 
Justified  in  the  Supreme  Court  of  Michigan  by  the  policy 

of  the  law  and  educational  history  of  that  State,  16. 
Ruleson  v.  Post  not  an  authority  against,  20. 

ILLINOIS. 

Ruleson  v.  Post  is  not  an  authority  against  taxation  foi 
high  schools  in,  20. 

To  be  exempt  in,  a  school-house  must  be  under  the  imme- 
diate control  of  the  school  district,  30. 

School-house  may  be  temporarily  used  for  religious  pur. 
poses,  59. 

School  month,  length  of,  in,  80. 

INDIANA. 

Private  college  exempt  in,  80. 

INJUNCTION. 

Will  lie  to  restrain  unlawful  use  of  school-house,  62. 


INDEX.  147 

INJUNCTION. — Continued. 

Will  not  lie  to  restrain  the  erection  of  a  school-house  near 
one's  dwelling  on  the  ground  of  its  being  a  nuisance,  62. 

Resident  entitled  to  an  injunction  to  restrain  a  teacher  not 
having  a  certificate,  72. 

County  superintendent,  as  such,  not  entitled  to  an  injunc- 
tion to  restrain  teacher,  72. 

IOWA. 

Statute  exempting  from  taxation  property  of  literary,  sci- 
entific, benevolent,  agricultural,  and  religious  societies, 
etc.,  construed,  27. 

Duties  of  school  directors  respecting  discharge  of  teachers 
are  of  a  judicial  character,  47. 

President  of  district  township  has  no  authority  to  employ 
counsel  unless  in  a  suit,  49. 

Board  of  directors  in,  have  no  power  to  make  contracts  for 
school  apparatus  without  vote  of  the  electors,  51. 

Electors  may  direct  school-houses  to  be  used  for  Sabbath- 
schools,  etc.,  58. 

School  month,  length  of,  in,  79. 

KANSAS. 

School-houses  in,  may  be  used  temporarily  for  other  than 

school-purposes,  61. 
School  month,  length  of,  in,  79. 

KENTUCKY. 

Failing  to  raise  school  funds,  are  personally  liable  to  the 

teacher,  50. 
School  month,  length  of,  in,  80. 

LOUISIANA. 

School  building  not  exempt  in,  unless  the  owner  thereof 

keeps  the  school,  30. 
School  month,  length  of,  in,  80. 

MAINE. 

School  district  in,  may  allow  school-houses  to  be  used  for 

religious  purposes,  etc.,  62. 
School  month,  length  of,  in,  79. 


148  INDEX. 

MARYLAND. 

No  school-house  can  be  used  for  other  than  school  purposes 
unless  by  consent  of  county  school  commissioners,  01. 

MASSACHUSETTS. 

High  schools  upheld  in,  18, 19. 
Early  provision  in,  for  public  schools,  18. 
HARVARD  COLLEGE  founded  in  1G36, 18. 
Construction  of  statute  exempting  property  of  literary  and 
scientific  institutions,  26,  28. 

MEETINGS. 

(See  SCHOOL  DISTRICT  MEETINGS.) 

MICHIGAN. 

Policy  of  law  of,  as  to  high  schools,  reviewed  by  Supreme 
Court,  16,  17. 

Supreme  Court  holds  there  is  110  restriction  as  to  grade  of 
instruction  if  the  voters  will  consent  to  bear  the  ex- 
pense, 16. 

Under  exemption  law  of,  the  words  "  belonging  to"  do 
not  necessarily  imply  ownership,  5JO. 

School  month,  length  of,  in,  80. 

MINNESOTA. 

School  month,  length  of,  in,  80. 

MISSISSIPPI. 

School  month,  length  of,  in,  79. 
MISSOURI. 

Directors  cannot  authorize  the  use  of  a  school-house  in, 

for  other  than  school  purposes,  61. 
School  month,  length  of,  in,  80. 
NEVADA. 

School  month,  length  of,  in,  80. 
NEW  JERSEY. 

Construction  of  exemption  clause  in  tax  act  of  1851,  27. 
Grammar  school  owned  and  rented  by  College  of  New 

Jersey  is  not  exempt  as  part  of  the  college,  29. 
Grammar  school  kept  by  one  at  his  own  risk,  for  his  own 
profit,  is  not  exempt  in,  29. 


INDEX.  149 

NEW  JERSEY. — Continued. 

School-houses  in,  may  be  used  for  other  than  school  pur- 
poses, 61. 

School  month,  length  of,  in,  80. 
Corporal  punishment  forbidden  in,  131. 

NEW  YORK. 

Private  boarding-school  is  not  such  a  school  as  is  exempt 

in,  29. 
District  or  neighborhood  meeting,  when  not  invalid  for 

want  of  notice,  65. 
Trustees   cannot  employ  relatives  without    approval    of 

voters,  68. 
School  month,  length  of,  in,  79. 

NORMAL  SCHOOLS. 

Establishment  of,  upheld  by  United  States  Circuit  Court, 

Eighth  Circuit,  20. 

Failure  to  mention  in  State  Constitution  does  not  amount 
to  a  prohibition  of,  22, 

OHIO. 

Mere  occupation  is  not  occupation  for  literary  purposes,  28. 
School  month,  length  of,  in,  80. 

PENNSYLVANIA. 

School  month,  length  of,  in,  80. 

POWER  TO  TAX  FOR  SCHOOL  PURPOSES. 

(See  TAXATION  FOR  PUBLIC  SCHOOLS  ;   HIGH  SCHOOLS  ; 
NORMAL  SCHOOLS.) 

PUBLIC  SCHOOLS. 

Provision  made  for,  in  Scotland,  in  1616,  10. 

Actually  established  in  Scotland  in  1696,  10. 

Effect  of  law  establishing,  in  Scotland,  11. 

Some  system  of,  in  every  great  civilized  nation,  12. 

Objections  to,  12. 

Are  powerful  to  uphold  the  law  and  protect  the  rights  of 

property,  12,  13. 
Lord  Brougham's  opinion,  13. 


150  INDEX. 

PUBLIC  SCHOOLS. — Continued. 

Daniel  Webster's  opinion,  14. 

Definition  of,  14. 

Synonymous  with  "  Common  Schools,"  14. 

Fit  object  of  taxation,  14,  15. 

No  restriction  as  to  instruction  in,  16. 

History  of,  reviewed,  in  Michigan,  16. 

Power  to  tax  for,  liberally  construed,  18. 

Provision  for,  in  Massachusetts,  in  1636,  18. 

Provision  for,  in  Puritan  colonies  in  1G47,  19. 

Remarks  of  Mr.  Bancroft  on  the  public  schools  of  New 
England,  19. 

Not  within  national  cognizance,  21. 

Importance  of,  opinion  of  U.  S.  Circuit  Court,  Eighth  Cir- 
cuit, 20. 

Exempt  from  taxation,  23. 

"  Public  school-house,"  to  be  exempt  in  Illinois,  must  be 
under  immediate  control  of  the  school  district,  30. 

Ground  for,  may  be  condemned,  32. 

Are  a  public  necessity,  32. 

Exercise  of  eminent  domain  for,  is  justifiable,  32. 

(See  USE  OF  SCHOOL  PHOI-EKTY.) 

REGULATIONS. 

By  whom  made,  89,  90. 
By  whom  enforced,  90,  91. 
Regulations  as  to  admission,  91-94. 

Admission  to  graded  schools,  91. 

Children  of  non-residents,  91. 

Discrimination  as  to  race,  92-94. 
Regulations  as  to  attendance,  94-102. 
Regulations  as  to  use  of  Bible,  etc.,  102-110. 
Regulations  as  to  studies,  111-113. 
Regulations  as  to  conduct,  etc.,  113-115. 
General  principle,  115-llb. 

SCHOOL  DISTRICT  MEETINGS. 

Notice,  time,  place  and  objects  of,  63-65. 


INDEX.  151 

SCHOOL  OPFICEBS. 

(See  UNITED  STATES  COMMISSIONER  OF  EDUCATION  ; 
STATE  SUPERINTENDENT  OF  PUBLIC  INSTRUCTION  ; 
COUNTY  SUPERINTENDENT  ;  DIRECTORS,  TRUSTEES, 
ETC.  ;  TREASURER  ;  VACANCIES.) 

SCHOOL  PROPERTY. 

(See  USE  OF  SCHOOL  PROPERTY.) 

SCHOOL  REGULATIONS, 

(See  REGULATIONS.) 

SITES  FOR  SCHOOL-HOUSES. 
May  be  condemned,  32. 
School  yard  may  be  condemned,  32. 
School  districts  are  empowered  by  law  to  hold  property  for 

school  purposes,  32. 
May  be  acquired  by  purchase,  32. 
Contracts  for,  may  be  enforced,  33. 
Officers  cannot  purchase,  without  direction  of  the  district, 

33. 
Where  acquired  by  deed  or  grant,  great  care  should  be 

exercised  in  naming  the  grantee,  33. 

STATE  SUPERINTENDENT  OF  PUBLIC  INSTRUCTION. 
Is  highest  officer  in  common  school  system,  43. 

TAXATION  FOR  PUBLIC  SCHOOLS. 

Its  origin  and  history,  9-14. 

Measures  for,  in  Scotland,  in  1616,  10. 

Is  the  most  effective  means  of  upholding  the  law,  12. 

The  source  of  the  authority  to  tax,  14. 

Is  for  a  public  use  and  purpose,  14. 

Is  constitutional,  16,  16,  17,  20,  21,  22. 

There  can  be  no  taxation  in  aid  of  a  private  school  oper- 
ated for  individual  profit,  15. 

The  policy  of  the  law  of  Michigan  reviewed,  16. 

Grammar  schools,  high  schools,  and  higher  institutions 
are  proper  objects  of  taxation,  16-22. 

Power  to  tax  for  public  schools  liberally  construed,  18. 
(See  HIGH  SCHOOLS  ;  NORMAL  SCHOOLS.) 


152  INDEX. 

TAXATION,  EXEMPTIONS  FROM. 

(See  EXEMPTION  OF  PKOPEBTY  USED  FOR  EDUCATIONAL 
PUBPOSBS.) 

TEACHERS. 

Employment  of,  66-88. 
Parties  to  the  contract,  66-70. 

Directors  or  trustees  act  for  the  district,  66. 

Contract  extending  beyond  trustee's  term  of  office,  67. 

Who  can  contract  to  teach,  67. 

A  minor  can  contract  when,  68. 

Effect  of  minor's  emancipation,  68. 

Minor  may  put  an  end  to  contract,  69. 

Minor  may   recover  proportional  compensation    where 
contract  is  put  at  an  end,  69. 

Minor's  claim  liable  to  set-off,  69. 

No  suit  against  minor  for  breach  of  contract,  69. 

Married  women  cannot  contract  at  common  law,  69. 

Married  women  enabled  by  statute  to  contract,  69. 

Married  women  can  contract  in  what  States,  69,  n.  8. 

Directors'  employment  of  each  other  void,  69. 

Director's  employment  as  teacher,  where  valid,  vacates 
the  office,  69,  70. 

Duties  of  teacher  and  director  are  incompatible,  70. 
A  certificate  prerequisite,  70-73. 

Circumstances  cannot  supersede  necessity  of  certificate, 
70. 

In  Tennessee  commissioners  indictable,  etc.,  70. 

Certificate  obtained  first  day,  whether  timely,  70. 

Certificate  made,  but  not  delivered,  71. 

Statement  of  good  moral  character,  71. 

Certificate  of  a  majority  not  acting  together,  71. 

Certificate  issued  without  examination,  71. 

Contract  with  teacher  not  having  certificate,  72. 

Where  examiner  refuses  to  examine  teacher,  72. 

School  district  cannot  waive  certificate,  72. 

Citizen  may  enjoin  teacher  without  certificate,  72. 

County  superintendent  not  entitled  to  an  injunction  to  re- 
strain toucher 


INDEX.  153 

• 

TEACHERS. — Continued. 

Spirit  of  the  requirement  of  certificate,  73. 

Certificate  is  prima  facie  evidence,  73. 
Character  of  the  contract,  74,  75. 

Usually  in  writing,  74. 

Where  no  written  contract,  teacher  entitled  to  reasonable 
compensation,  74. 

Katification  of  parole  contract,  74. 

Written  contract  presumed  to  contain  all,  74. 
•     Conditions  of  the  contract,  75-81. 

What  the  contract  is,  75. 

Contract  is  for  personal  services,  75. 

Cannot  substitute  proxy,  75. 

Abilities  requisite,  75. 

Industry  requisite,  75. 

Contract  subject  to  statutes,  75, 76. 

Clause  reserving  right  to  discharge,  76. 

Stipulation  that  teacher  will  quit  if  school  is  not  satis- 
factory, 77. 

Continuance  in  school  after  discharge,  77. 

Power  to  discharge  teacher,  77. 

The  word  "month,"  how  construed,  78,  79. 

"  School  month  "  what  is,  79, 80. 

Holidays,  what  are,  80. 

Holidays,  whether  counted,  80. 

Contract  to  teach  does  not  require  the  teacher  to  do 

Janitorial  work,  80. 
Breach  of  the  contract,  81,82. 

Effect  of  breach,  81. 

What  constitutes  a  breach  of  the  contract,  81, 82. 

Closing  the  school  on  account  of  contagious  disease,  82. 

What  act  of  God  excuses  performance,  82. 
Remedies,  83-85. 

Remedy  of  board  is  dismissal,  83. 

Teacher's  remedies,  83. 

Suit  must  be  against  corporation,  84. 

Directors  not  individually  liable,  84. 

Teacher  entitled  to  reasonable  value  where  no  contract, 84. 

Reinstated,  when,  85. 


154  INDKX. 

TEACHERS. — Continued. 

Defences  to  the  teacher's  suit  for  salary,  85-88. 

Teacher  stands  in  loco  par entis,  119. 

Authority  of  teacher,  119  etseq. 

Liability  of  teacher,  120  et  seq. 

Jurisdiction  of  teacher,  129. 

(See  REGULATIONS  ;  CORPORAL  PUNISHMENT.) 

TENNESSEE. 

Commissioner  indictable  for  hiring  teacher  without  certifi- 
cate, 70. 

TREASURER. 

Liability  of,  54-56. 

TRUSTEES. 

(See  DIRECTORS,  TRUSTEES,  ETC.) 

UNITED  STATES  COMMISSIONER  OF  EDUCATION. 
Origin  of  office,  41,42. 
Duties  of,  41-44 

USE  OF  SCHOOL  PROPERTY. 

For  religious,  literary,  and  township  purposes,  «:tc.,  58-62. 
Where  unlawful,  injunction  will  lie,  62. 

VACANCIES. 

By  operation  of  law,  56,  57. 

WEST  VIRGINIA. 

School-houses  may  be  used  for  other  than  school  purposes, 
61. 

WISCONSIN. 

Directors  cannot  authorize  the  use  of  a  school-house  for 

other  than  school  purposes,  61. 
School  month,  length  of,  in,  79. 


S,  BARNES  &  Co:s  CATALOGUE. 

DEPARTMENT  OF  OENERAL  LITERATURE. 

PRICES  INCLUDING  POSTAGE. 

THE      TEACHERS'     LIBRARY. 

Object  Lessons — Welch,  -      $1  oo 

This  is  a  complete  exposition  of  the  popular  modern  system  of  "  object-teach- 
ing," for  teachers  of  primary  classes. 

Theory  and   Practice  of  Teaching — Page,       -  I   50 

This  volume  has,  without  doubt,  been  read  by  tyro  hundred  thousand  teachers, 
and  its  popularity  remains  undiminished — large  editions  being  exhausted  yearly. 
It  was  the  pioneer,  as  it  is  now  the  patriarch,  of  professional  works  for  teachers. 

The  Graded  School — Wells,  -  I    25 

The  proper  way  to  organize  graded  schools  is  here  illustrated.  The  author  has 
availed  himself  of  the  best  elements  of  the  several  systems  prevalent  in  Boston,  New 
York,  Philadelphia,  Cincinnati,  St.  Louis,  and  other  cities. 

The  Normal — Holbrook,  -  -  i   50 

Carries  a  working  school  on  its  visit  to  teachers,  showing  the  most  approved 
methods  of  teaching  all  the  common  branches,  including  the  technicalities,  explan- 
ations, demonstrations,  and  definitions  introductory  and  peculiar  to  each  branch. 

School   Management — Holbrook,     -  I    50 

Treating  of  the  Teacher's  Qualifications  ;  How  to  overcome  Difficulties  in  Self 
and  Others ;  Organization  ;  Discipline  ;  Methods  of  inciting  Diligence  and  Order ; 
Strategy  in  Management ;  Object  Teaching. 

The  Teachers'  Institute — Fowle,      -  i   25 

This  is  a  volume  of  suggestions  inspired  by  the  author's  experience  at  institutes, 
in  the  Instruction  of  young  teachers.  A  thousand  points  of  interest  to  this  fii&sa  are 
most  satisfactorily  dealt  with. 

Schools  and  Schoolmasters — Dickens,     -  i  25 

Appropriate  selections  from  the  writings  of  the  great  novelist. 

The  Metric  System — Davies,  i  50 

Considered  with  reference  to  its  general  introduction,  and  embracing  the  views 
of  John  Quincy  Adams  and  Sir  John  Uerschel. 

The  Student;  The  Educator — Phelps,    -         -  each,        i   50 
The   Discipline  of  Life — Phelps,     -  i   75 

The  authoress  of  these  works  is  one  of  the  most  distinguished  writers  on  edu- 
cation, and  they  cannot  fail  to  prove  a  valuable  addition  to  the  School  and  Teachers' 
Libraries,  being  in  a  high  degree  both  interesting  and  instructive. 

A  Scientific  Basis  of  Education — Hecker,       -        -        a  50 
Adaptation  of  Btndy  and  classification  by  temperaments. 

49 


The  National   Teachers'  JLibrrtry. 


Teachers'  Hand-Book  —  Phelps  $i  50 

By  WM.  F.  PHELPS,  Principal  of  Minnesota  State  Normal  School  Embracing 
the  objects,  history,  organization  and  management  of  Teachers'  Institutes,  followed 
by  Methods  of  Teaching,  in  detail,  for  all  the  fundamental  branches.  Every  young 
teacher,  every  practical  teacher,  every  experienced  teacher  even,  needs  this  book. 

From  the  New  York  Tribune. 

"  The  discipline  of  the  school  should  prepare  the  child  for  the  discipline  of  life 
The  country  schoolmaster,  accordingly,  holds  a  position  of  vital  interest  to  the  des- 
tiny of  the  republic,  and  should  neglect  no  means  for  the  wise  and  efficient  discharge 
ol  his  significant  funcfons.  This  is  the  key-note  of  the  present  excellent  volume. 
In  view  of  the  supreme  importance  of  the  teacher's  calling,  Mr.  Phelps  has  presented 
an  elaborate  system  of  instruction  in  the  elements  of  learning,  with  a  complete  de- 
tail of  methods  and  processes,  illustrated  with  an  abundance  of  practical  examples 
and  enforced  by  judicious  counsels. 

Stone's  Topical  Course  of  Study     -  40 

This  volume  is  a  compilation  from  the  courses  of  study  of  our  most  successful 
public  schools,  and  the  nest  thought  of  leading  educators.  The  pupil  is  cnatd.-d  to 
make  full  use  of  any  and  all  text -books  bearing  on  the  given  topics,  and  is  incited 
to  use  all  other  information  within  his  reach. 

American  Education  —  Mansfield      -  i  50 

A  treatise  on  the  principles  and  elements  of  education,  as  practised  in  this 
country,  with  ideas  towards  distinctive  republican  and  Christian  education. 

American  Institutions  —  De  Tocqueville     -  I  50 

A  valuable  index  to  the  genius  of  our  Government. 

Universal  Education  —  Mayhew  I  75 

The  subject  is  approached  with  the  clear,  keen  perception  of  one  who  has  ob- 
served its  necessity,  and  realized  its  feasibility  and  expediency  alike.  The  redeem- 
ing and  elevating  power  of  improved  common  schools  constitutes  the  inspiration  of 
the  volume. 

Higher  Christian  Education  —  Dwight       -  I  50 

A  treatise  on  the  principles  and  spirit,  the  modes,  directions  mnd  results  of  all 
true  teaching ;  showing  thit  right  education  should  appeal  to  every  element  of  en- 
thusiasm in  the  teacher  s  nature. 

Oral  Training  Lessons — Barnard      -  i  oo 

The  object  of  this  very  useful  work  is  to  furnish  material  for  instructors  to 
impart  orally  to  their  classes,  in  branches  not  usually  taught  in  common  schools, 
embracing  all  departments  of  Natural  Science  and  much  general  knowledge. 

Lectures  on  Natural  History  —  Chadbourne  75 

Affording  many  themes  for  oral  iaOtruction  in  this  interesting  science— especially 
in  schools  where  it  is  not  pursued  as  a  class  exercise. 

Outlines  of  Mathematical  Science  —  Davies      -  i  oo 

A  manual  suggesting  the  best  methods  of  presenting  mathematical  Instruction 
on  the  part  of  the  teacher,  with  that  vwnprehensi  ve  view  of  the  whole  which  is  nec- 
essary to  the  intelligent  treatment  of  a  part,  in  science. 

Nature  and  Utility  of  Mathematics — Davies     -  i  50 

An  elaborate  and  lucid  exposition  of  the  principles  which  lie  at  the  foundation 
of  pure  mathematics,  with  a  higiily  ingenious  application  of  their  results  to  the  de- 
velopment of  the  essential  idea  of  the  different  branches  of  the  science. 

Mathematical  Dictionary — Davies  and  Peck  400 

This  cyclopaedia  of  mathematical  science  defines,  with  completeness,  precision, 
and  accuracy,  every  technical  term ;  thus  constituting  a  popular  treatise  on  each 
branch  and  a  general  view  of  the  whole  subject. 

50 


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